Copyright Makes Strange Bedfellows

It’s probably fair to say that Donald Trump was not the first choice for president among the majority of those within the media and entertainment industries. Since his election last month, however, their official industry representatives have wasted little time trying to ingratiate themselves with the incoming administration and to press the industries’ policy agenda.

“So much of what you wrote in your platform this summer about intellectual property and private property rights resonated with many of us, including: ‘Intellectual property is a driving force in today’s global economy of constant innovation,'” a consortium of music industry trade associations wrote to Trump this week. “‘It is the wellspring of American economic growth and job creation. With the rise of the digital economy, it has become even more critical that we protect intellectual property rights and preserve freedom of contract rather than create regulatory barriers to creativity, growth, and innovation.’

“As partners, many in the technology and corporate community should be commended for doing their part to help value creators and their content,” the groups added. “Some have developed systems to promote a healthy market for music and deter theft. However, much more needs to be done…[T]here is a massive ‘value grab’ as some of these corporations weaken intellectual property rights for America’s creators by exploiting legal loopholes never intended for them – perversely abusing U.S. law to underpay music creators, thus harming one of America’s economic and job engines.”

The Association of American Publishers laid it on equally thick.

“This is not industry puffery, Mr. President-Elect,” the publishers puffed. “You and your daughter Ivanka are part of the proof, having authored some 18 popular books in the past thirty years, most of them published by imprints of AAP members…Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand.”

The outreach probably has less to do with a change of heart on the president-elect as with a perceived opportunity to gain the ear of the new White House after eight years in which the Obama Administration was seen as tilting toward technology companies — especially Google — with which copyright owners often view themselves as in a zero-sum struggle over issues related to intellectual property.

So intense is the paranoia in some quarters over Google and its influence on the Obama White House, in fact, that it has led some in the copyright industries embrace conspiracy theories, seeing Google’s sinister hand behind everything from the abrupt removal of the Register of Copyrights by the new, Obama-appointed Librarian of Congress to the Justice Department’s recent decision to require 100 percent licensing of songs by ASCAP and BMI.

Paranoia aside, though, the copyright industries are probably right to pounce, at least as a political matter. To whatever extent Google and its Silicon Valley cohorts truly worked against the interests of copyright holders the technology industry suddenly finds itself on the defensive in the age of Trump.

Although the president-elect summoned several of technology’s leading lights to Trump Tower this week for a fet-to-know-you powwow, it was no love-fest, despite Trump’s nominally conciliatory tone.

More to the point, Trump’s trade agenda and bellicose posture toward China represents a clear and present danger to Apple, Google, Facebook, Microsoft and the rest. Not only could chilly relations with China freeze them out of that massive market but Silicon Valley is highly dependent on a global supply chain that runs right through the People’s Republic.

(It was notable that the Motion Picture Association of America, whose members are currently actively courting Chinese investment as well as market access, was not represented on the missives sent to Trump Tower this week.)

Technology companies are also vulnerable to charges of off-shoring production of their gee-gaws and undercutting employment in the U.S., a signature issue for Trump during the campaign.

Moreover, the close identification of many leading technology companies with their CEOs — Bezos, Zuckerberg, Cook — will make it easier for the thin-skinned and impulsive new president to personalize disputes and retaliate against individual companies, as he’s recently done to Boeing and Lockheed Martin, cratering their stocks.

In short, Silicon Valley has a lot to worry about from the incoming administration apart from revising the safe harbor provisions of the Digital Millennium Copyright Act or whether the Copyright Office gains independence from the Library of Congress,  and it needs to husband its political capital carefully. If ever there were a time for copyright owners to catch Google on the back foot, now is probably it.

 

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