Copyright's Swift Turnstile Resembles Other Industries

The movement of policy professionals between the private sector and the federal government is firmly entrenched on Capitol Hill, and the copyright industry -- its trade associations, law firms, think tanks and entertainment and tech companies -- are no exception, IP experts said.

The copyright debate remains largely divided between the competing interests of the entertainment and tech industries, experts said. Proponents of the former said traditional copyright protections are under siege due to the tech industry's explosive growth. Google is the poster child of the tech industry's ascension on the Hill, with influence extending far beyond copyright, said attorney Chris Castle, who represents artists and musicians and has worked with digital music services. But Google isn’t “unique” in “working hard to build its influence” on the Hill, said Mitch Stoltz, Electronic Frontier Foundation staff attorney. “The entertainment industries have been building the same relationships since the era of Hollywood blacklists.”

Examined here is Google's role in the revolving door, as well as that of key organizations involved in music licensing and other copyright debates. Proposed music licensing legislation is expected to command significant attention in the House Judiciary Committee's ongoing copyright review next year (see 1410090092).

President Barack Obama nominated former Google executives and attorneys to a variety of White House and federal agency positions this year. Before her appointment as U.S. chief technology officer, Megan Smith was research lab Google X vice president, and before that spent nine years as Google vice president-new business development (see 1409050051). Obama also selected Alexander Macgillivray as deputy CTO. Macgillivray previously was Twitter general counsel, and before that, Google deputy general counsel-products and IP. Obama’s nomination of Patent and Trademark Office Deputy Director Michelle Lee as the agency's director is awaiting confirmation (see 1412100031).Before joining PTO, Lee was Google’s deputy general counsel.

Both Google and the federal government want to hire the “best and the brightest” to advise on a range of tech policies, Stoltz said. “That’s a fairly small pool.” The revolving door for tech companies is hardly limited to Google, Stoltz said, citing the influence of Facebook and Microsoft. Tech companies are “equally interested” in other issues like immigration, taxes and labor, he said. But for groups like MPAA and RIAA, copyright is the first priority, and they “generally throw more money at that issue,” Stoltz said. Those top priorities will determine where a group builds "influence faster,” he said. Stoltz pointed out that the average Internet user isn't affiliated with a major company and doesn't have the luxury of developing influence on the Hill.

It’s “hard to compare Google to any of the copyright related groups, because Google is lobbying about everything all the time,” Castle said. Groups like MPAA and RIAA typically focus on copyright and piracy issues, whereas Google has interests that extend to robotics, drones and other areas, he said. Castle criticized what he described as the undue influence of attorneys on both sides of the copyright debate. “When you get a bunch of litigators in the room and ask them what to do about something, don’t be surprised if they say ‘litigate’” he said. It appears that many lobbyists are “compensated for working on the problem rather than solving the problem,” Castle said. That creates a “tendency to keep the problem going,” he said.

'Par for the Course'

The revolving door is “par for the course for our government in general,” said Christopher Ruen, author of Freeloading: How Our Insatiable Hunger for Free Content Starves Creativity. One can interpret the revolving door generously or suspiciously, he said. In the first instance, one might determine that those with extensive experience working in government and the private sector “know the most” and are therefore “qualified,” Ruen said. But one also might view the revolving door as an exclusive benefit for the entertainment and tech lobbies, he said. The power dynamics, however, have changed, and the entertainment industry’s dominance in the copyright lobby is over, Ruen said. The record industry isn’t a “powerful force” compared with Google, he said.

The revolving door is a “political reality” on the Hill, said Casey Rae, Future of Music Coalition CEO. Washington isn’t a cheap place to live and Hill staffers aren’t making as much as they could at a law firm or trade association, he said. “Even the most stalwart public servants may want to raise a family.” The relationship between the Hill and the private sector isn’t unique to copyright, and it would be “disingenuous” for either the entertainment lobby or the tech lobby to claim one side is any worse than the other, he said: The revolving door is “pretty pervasive.”

Many of the key players on copyright lobbying came from the Hill and federal agencies, and they work on both sides of the issue.

Former Rep. Susan Molinari, R-N.Y., is director of Google’s Washington office. She lobbied on a range of copyright issues in Q3, including “limitations” for the Digital Millennium Copyright Act notice and takedown regime, lobbying disclosure forms show. Former House Parliamentarian John Sullivan joined Google as public policy and public relations counsel in 2013, the Center for Responsive Politics said. He also participated in Google’s Q3 copyright lobbying efforts, lobbying forms said. Also contributing to Google’s copyright lobbying efforts in Q3 was Johanna Shelton, former counsel to the House Commerce Committee, CRP said. Seth Webb, Google senior policy manager and copyright lobbyist, previously was deputy staff director to the House Financial Services Committee in 2009, CRP said.

Former Sen. Chris Dodd, D-Conn., is MPAA CEO. Neil Fried, MPAA senior vice president-government and regulatory affairs, was House Commerce Telecommunications Subcommittee chief counsel from 2003 to 2013, CRP said. Fried lobbied Congress, the PTO and the U.S. Trade Representative on copyright issues in Q3, including “online content distribution” and “piracy,” lobbying disclosure forms said.

Mitch Glazier, RIAA senior executive vice president, was chief counsel to the House Judiciary IP Subcommittee from 1995 to 2000, CRP said. Michele Ballantyne, RIAA executive vice president-public policy and industry affairs, previously was general counsel to former Sen. Tom Daschle, D-S.D., according to CRP.

National Music Publishers' Association CEO David Israelite was deputy chief of staff to the U.S. Attorney General’s office from 2001 to 2005, according to CRP. Israelite lobbied Congress, the Commerce Department and the Justice Department on copyright issues in Q3, including on DOJ’s ongoing review of consent decrees for performance rights organizations (see 1408040070). Chris Cylke, NMPA senior vice president-public affairs, was senior legislative assistant to the House Judiciary Committee from 2001 to 2008, CRP said.