While it is only a few months into the Biden/Harris presidency, companies that face the constant challenge of fighting online and offline counterfeits are wondering whether President Biden will be their “brand protection” President. Although key appointments in his administration, such as the Intellectual Property Enforcement Coordinator (IPEC), have not yet been filled, President Biden’s past involvement with intellectual property matters and his attitude towards online accountability suggests he might be the IP savior for whom brand owners are hoping.
NO STRANGER TO IP
President Biden is no newcomer to intellectual property issues. As a longtime member of the US Senate Committee on the Judiciary (chair; 1987-1995 and ranking minority member; 1981-1987 and 1995-1997) (bioguideretro.congress.gov). Senator Biden’s Committee included the Subcommittee on Intellectual Property, which had jurisdiction over patent, trademark, copyright matters and the government’s actions as they relate to IP (judiciary.senate.gov). During his leadership in the Senate, Biden sponsored and supported several bills aimed to address infringement including the “Intellectual Property Enforcement Act,” the “Anti-Counterfeiting Act of 2004,” the “Intellectual Property Rights Improvement Act” as well as a concurrent resolution expressing the sense of Congress that United States intellectual property rights must be protected globally (congress.gov).
While also chairing the Senate Committee on Foreign Relations, Senator Biden authored a report in 2002 titled “Theft of American Intellectual Property: Fighting Crime Abroad and at Home” in which the Senator identified the threats posed by copyright infringement and counterfeiting. (Foreign Relations Report, 2002). Finally, Senator Biden served as the first co-chair of the Congressional Anti-Piracy Caucus, a fifty-member group focused on tackling markets selling pirated music, books, video games, and other counterfeited materials (law360.com, 2003). Based on President Biden’s extensive record as a senator, he clearly has experience addressing issues of brand protection and intellectual property rights enforcement.
IP POLICY UNDER PRESIDENT OBAMA
Under the Obama administration, Vice-President Biden essentially “owned” the IP policy portfolio. Vice-President Biden worked closely with Intellectual Property Enforcement Coordinator (IPEC) Victoria Espinel to host roundtable discussions on copyright infringement and counterfeit distribution (arstechnica.com, 2009). Vice-President Biden was instrumental in helping to shape the IPEC’s first Joint Strategic Plan (JSP) that put forward the White House’s national intellectual property strategy which included 33 enforcement action items that fall within six categories of focus for the United States: (1) leading by example; (2) increasing transparency; (3) ensuring efficiency and coordination; (4) enforcing our rights internationally; (5) securing our supply chain; and (6) building a data-driven government to address IP enforcement (bmi.com, 2010). Vice-President Biden’s focus on, and involvement with, intellectual property related policy and enforcement should give brand owners hope that he will continue to have IP as a focus of his presidency.
PERSONNEL IS POLICY
Ronald Reagan’s director of personnel, Scott Faulkner, once said, “personnel is policy.” meaning that it is the “who” that makes the “what” when it comes to policy and priorities and President’s Biden’s appointments so far seem to indicate that he has a liking for appointees that are pro-IP (democracyjournal.org, 2020). President Biden selected Alejandro Mayorkas to serve as the Secretary for the Department of Homeland Security. Biden and Secretary Mayorkas met years earlier when Mayorkas was a member of the IPEC task force assembled to issue a revised JSP under IPEC Danny Marti. The new JSP was critical of Customs and Border Patrol (CBP) efforts to disrupt the increasing flow of counterfeit goods into the United States (obamawhitehouse.archives.gov). Secretary Mayorkas will now lead the CBP and the IP Rights Center as both are under his department. His previous pro-IP work will likely carry over into his role as DHS Secretary.
In addition to Mayorkas, President Biden’s closet friends and advisors are pro-IP minded individuals. Former Senator Chris Dodd (D-Conn), one of the President’s closest confidantes was selected by Biden to vet his Vice-presidential running mate (courant.com, 2020). Dodd left the Senate in 2011 to become a lobbyist and later CEO of the Motion Picture Association of America (MPAA), which pushed for the passage of two important pro-IP bills, the PROTECT IP Act and the Stop Online Piracy Act. Another close friend and ally, Chris Coons (politico.com, 2020) has been tapped to Chair the Senate’s Subcommittee on Intellectual Property (judiciary.senate.gov). In his “Made in All America” plan, presidential candidate Biden promised to “confront foreign efforts to steal American Intellectual Property.” (joebiden.com, 2020). While Biden has yet to appoint a new IPEC or US Trade Representatives, brand owners should expect the President to lean on trusted advisors Coons and Dodd for insight and advice on these appointments and the setting of White House policy supporting intellectual property rights management and enforcement.
NOT COZY WITH TECH
One widely shared criticism of the Obama administration was that President Obama was too “cozy” with tech titans, letting them get away with allowing illegal and infringing content on their platforms. Most experts believe President Biden will not nearly be as friendly to the Silicon Valley crowd (wzzm13.com, 2020). In an insightful interview with the New York Time’s Editorial Board last year, Biden said he has “never been a fan of Facebook,” adding further that Section 230 of the Communications Decency Act, which provides immunity to online platforms for things users post, should be “revoked” (nytimes.com, 2020). With social media and e-commerce websites becoming the preferred platforms for advertising and selling of counterfeit goods, brands should welcome a Biden administration that has made it clear that the President wants to hold social media and e-commerce businesses accountable and potentially liable for illegal or infringing content posted on their platforms (iccwbo.org, 2015).
Clearly the first, second, and third priorities of the Biden administration will be vaccinating the public against COVID-19, stabilizing the US economy, and creating jobs lost to the pandemic. The pandemic, however, has also shown the spotlight on the scourge of COVID-related counterfeits ranging from masks to the vaccine itself. The urgency to address fakes and counterfeits related to the pandemic may be what is needed to kick the overarching issue of brand protection to the top of the President’s policy agenda. President Biden’s track record and experience with IP matters, his connections to individuals who are committed to anti-piracy and anti-counterfeit legislation, and his views on big tech, all suggest that Biden could be the most pro-IP and brand protection minded president to occupy the White House.
*Statton Hammock is a recognized expert in Internet-related law, policy, and brand protection. Statton advocates for regulations, procedures, and industry best practices that promote the security, trust, and safety of the Internet and use of online platforms. Statton has worked with the world’s most recognized brands and non-profit organizations to develop and protect their intellectual property rights online and enhance their digital presence.
THE BRAND PROTECTION PROFESSIONAL |MARCH 2021 | VOLUME 6 NUMBER 1
2021 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES