Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms

By Marla Grossman & Gene Quinn
December 18, 2016

Donald J. Trump at the sixth season casting call search for 'The Apprentice' held at the Universal Studios in Hollywood, USA on March 10, 2006.

Donald Trump at the sixth season casting call search for ‘The Apprentice’ held at the Universal Studios in Hollywood, CA, on March 10, 2006.

This month the International Intellectual Property Alliance published its report on the contribution of copyright industries to the US economy. It demonstrated the major economic benefits to our society that are attributable to our traditional protection of intellectual property rights. At the issuance of this report, Congressman Doug Collins, House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet Vice Chair, stated, “Creativity undergirds the 21st century economy, and strong intellectual property rights ensure that our economy benefits from the innovation and pluck of American workers who bring many of our dreams to life…..Our nation’s founders, in their wisdom, placed intellectual property rights under the umbrella of our protected Constitutional rights. From the beginning, Congress has had the responsibility of upholding and strengthening those rights—which fuel American ingenuity….”

We know that not only are copyrights grounded in the constitution, but core copyright industries contribute approximately $1.2 trillion to the U.S. economy annually, and employ over 5.5 million American workers. At the same time, however, we are acutely aware that, unfortunately, copyright theft online is rampant, and the Digital Millennium Copyright Act (DMCA) has increasingly become ill equipped to address even flagrant, willful copyright infringement in the digital world.

What we don’t know, however, is how President-Elect Trump and the Trump Administration will view copyright issues, and whether pro-creator copyright reforms will be on the President’s agenda come January 20, 2017. We can, however, make some educated guesses based on Trump’s entertainment industry ties, his potential Supreme Court nominees, and those he is surrounding himself with on his Transition Team and in a Trump Administration that is increasingly taking shape.

 

Trump Entertainment Industry Ties

People have called Trump many things, but even his most vociferous critics must admit he is a media genius. As an entertainment personality, he first became known as an author, writing: Trump: The Art of the Deal, first published in 1987. Trump has written other books since, but he became most widely known for his starring role as the host of the reality TV series The Apprentice. Trump recently tweeted that he conceived of the idea of The Apprentice with producer Mark Burnett, and he will continue to receive Executive Producer credit on the show even after he is sworn in as President. Trump also owned the Miss Universe beauty pageant from 1996 until 2015. All in all, Trump has over 30 copyrights to his name, not including any owned by his companies.

Despite this background, we cannot be certain that the new Administration will side with copyright owners. To be sure, the President-elect has been for some time a larger than life media personality and talent within the industry, and thus might be inclined to support others in the creative industries Moreover, Trump has had on-again off-again rocky relationships with broadcast networks over the years (see here and here) and the Silicon Valley giants that find themselves at cross purposes with content creators in the digital era did nothing to endear themselves to Trump during the campaign. In fact, with the exception of Peter Thiel and to a lesser extent Mark Zuckerberg (who was largely defending Peter Thiel) the Silicon Valley elite snubbed, mocked and ridiculed Donald Trump and his supporters throughout the election cycle. With all that said, however, predicting the new Administration’s position on specific copyright issues is a fool’s errand at this time.

 

Potential Supreme Court Nominees

One of the first things President Trump will likely do is appoint a Supreme Court Justice to fill the vacancy left by the death of Justice Antonin Scalia. Trump has released a list of possible nominees for the Supreme Court. Only a few seem to have any copyright experience or familiarity in their professional past.

Florida Supreme Court Justice Charles Canady previously served in the House of Representatives from 1993 to 2000. While in Congress, Justice Canady served on the House Judiciary Committee and its Subcommittee on Courts, Intellectual Property, and the Internet. He co-sponsored during his time in Congress two bills related to copyrights: (1) The Copyright Term Extension Act; and (2) The Intellectual Property Antitrust Protection Act.

Senator Mike Lee (R-UT) has had some involvement with copyright policy in the music industry as chairman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, but he did not tip his hand about whether he places more value on copyright as a property right or on a consumer’s ability to access the copyright. As an example, he summarized his opening statement in a hearing last congress with the non-committal statement, “As we listen today, we must remember that we have both a responsibility to encourage creativity by recognizing the value of copyrights and a duty to ensure that prices for music remain competitive for consumers.” In 2012, Senator Lee opposed the Protect IP Act, legislation supported by the copyright industries to provide the US government and copyright holders additional tools to curb access to rogue websites dedicated to the sale of infringing or counterfeit goods. In a statement Senator Lee released on January 18, 2012, explaining his opposition to the Protect IP Act, he explained he was sympathetic to the objectives of the Act, but thought the bill “would threaten Internet security, stifle the free flow of online information, and unduly burden third parties.”

Senator Lee’s brother, Utah Supreme Court Associate Chief Justice Thomas Lee, previously specialized in intellectual property law while in private practice. Justice Lee also taught intellectual property law at Brigham Young University. However, Justice Lee seems to have primarily specialized in trademark law, not copyright matters. Only two articles relating to copyright law could be located that were authored by Justice Lee, both written while he was a Law Professor at BYU. They are: (1) Eldred V. Ashcroft and the (Hypothetical) Copyright Term Extension Act of 2020 (2003); and (2) “To Promote the Progress of Science”: The Copyright Clause and Congress’s Power to Extend Copyrights (2002) (co-authored with Senator Orrin Hatch R-UT). In the 2003 article, he argued that if the Supreme Court ruled in Eldred that a term of life plus seventy years was “limited” than they would be unlikely to rule differently in the case of life plus 100 years. A thirty year increase is still not a “perpetual copyright.” In the 2002 article, however, the authors argued in favor of the Copyright Term Extension Act (CETA). Specifically, they supported their argument using the scarcely referenced preambular purpose provision of the Copyright Clause, “promot[ing] the progress of science” and took issue with the then-existing scholarly literature that asserted “that copyright fulfills its constitutional purpose only if it increases the quantity or quality of the existing body of artistic works.” They argued that progress does not inherently equal “more” but rather the physical movement forward. “The Copyright Clause,” they wrote, “encompasses the broader notion of encouraging the dissemination and preservation of existing works. Since the CTEA can be understood to advance those objectives” it should be upheld as “constitutional.”

 

Trump, Trump Transition Officials and Trump Nominee Statements on IP

Perhaps the closest thing the President-elect has offered as an insight into how he will treat copyright as President came during an August 8th speech outlining his economic plan. He stated (with the following underlining added for emphasis):

“At the center of my plan is trade enforcement with China. This alone could return millions of jobs into our country. They break the rules in every way imaginable. China engages in illegal export subsidies, prohibited currency manipulation, and rampant theft of intellectual property. They also have no real environmental or labor protections, further undercutting American workers. Just enforcing intellectual property rules alone could save millions of American jobs. According to the U.S. International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States.”

One of the transition team members, Congresswoman Marsha Blackburn (R-TN), House Energy and Commerce Committee Vice Chair recently stated, “Creativity unleashes endless possibilities as evidenced by the results of this study. The contributions made by the creative industry to the US economy are remarkable. It’s imperative that we continue pushing to protect intellectual property rights.”

Another of Trump’s transition team members, Congressman Tom Marino (R-PA), a member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, has been a long-time copyright supporter. He noted upon introducing the Copyright Office for the Digital Economy (CODE) Act, “Creativity is the essence that has made America the most prosperous nation in the world.” At an event for music publishers and songwriters, he said, “I know firsthand what it is like to work hard for a paycheck and stretch a buck into next week. I appreciate the painstaking hours you put into your craft. When I think of songwriters, I think of the extraordinary gifts songwriters create for society. Music provides the soundtrack to our lives… Call me crazy, but if you work for hours and hours on a hit that is played around the world, your paycheck ought to reflect that success and make a good living for you and your family… There are songwriters in each district in America… If each of these songwriters reaches out to their members of Congress, we can make a difference. Advocacy is of the utmost importance.”

The President-elect’s nominee for Secretary of Commerce, Wilbur Ross, wrote an op-ed in July 2016 saying WTO provides “little or no protection” against IP theft. Moreover, he stated that future trade deals should have “zero tolerance” for IP theft.

 

Conclusion

The creative works that are supported by America’s copyright laws – music, movies, TV, books, software, and video games – bind us together as a nation. Admittedly, there are far more questions than answers with respect to how the President-elect and his Administration will approach specific copyright law issues and potential copyright reforms, but there is reason to hope that they understand the critical importance of copyright to our economy, to good American jobs, and to our global competitiveness.

 

The Author

Marla Grossman

Marla Grossman is one of the country’s preeminent intellectual property, technology and trade government relations attorneys. As a partner at the American Continental Group, she helps her clients with strategic public policy planning and representation before the White House, U.S. federal agencies and the U.S. Congress. Before joining ACG, Ms. Grossman was a partner at PCT Government Relations, a lobbying firm focused on intellectual property and technology public policy matters. Prior to that, Ms. Grossman was a partner at the law firm of DLA Piper. From 1997-1999, Ms. Grossman served as minority counsel to the U.S. Senate Judiciary Committee, where she was instrumental in the development of policy positions and legislative initiatives for current U.S. Senator Patrick Leahy (D-VT). Before working on Capitol Hill, she served as the Assistant Director of Public Liaison and Director of Law Enforcement Outreach for the Clinton-Gore 1996 presidential campaign.

Marla Grossman

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 3 Comments comments.

  1. LLDC December 19, 2016 7:27 pm

    ‘All in all, Trump has over 30 copyrights to his name, not including any owned by his companies.’

    Can you clarify? I think you are referring to his trademarks. Although DT holds copyrights for his books, TV shows, and audio recordings, he holds hundreds if not thousands of trademarks worldwide. Certainly, your article does not discuss that Donald Trump finally invalidated a ‘competitor’s’ trademark in China after a 10-year battle. Donald Trump holds 78 valid trademarks in China.

    http://www.wsj.com/articles/donald-trump-scores-legal-win-in-china-trademark-dispute-1479169494

  2. Frank December 21, 2016 6:18 pm

    Yes there’s certainly a fair bit of uncertainty coming along with the new administration. I agree it would be great to get some better tools to deal with flagrant abuse we see happening these days.

  3. Trillium January 6, 2017 2:46 pm

    As a small potatoes online content provider it is exhausting trying to keep up with all the punks (sorry for using this term but if you deal with them enough you will eventually feel the same way about them) out there who steal content. I have used Google copyright removal which has helped some:

    https://www.google.com/webmasters/tools/dmca-notice?hl=en&pli=1

    I have looked up hosting companies this way:

    https://www.webhostinghero.com/who-is-hosting/?id=a27e9c240364715c141018f4be0464a4

    I contacted them about their bad players they host and the good ones will want to know since the bad apples can affect their host rankings, I guess with Google.

    But there is a whole bunch that make it impossible for me to file since they want my phone number and address and now these punks will have that info and I shy away from those since when you contact these content thieves they are not nice people and I have been cussed out and threatened. They are from all parts of the world like Russia.

    Google just want urls for proof, name, email address and swearing that you are above board on these claims. You can tell the bad hosting companies by how much they will intimate the victim with needing more information than necessary. It isn’t rocket science here. When I look up these companies that make it difficult they tend to be poorly rated.

    These punks will first deny over and over they are doing it or they say they remove the stolen content and then they don’t. They lie and lie. Then they will cuss you out in long drawn out broken English or they will change email address. Some will quickly just redirect from the old infringing site to a completely new one with totally different stuff. It is a cat and mouse game for sure. It takes a lot of time and very frustrating. I wonder if it is worth it.

    I know Trump recently said he doesn’t use the internet since it is not safe. He sends messengers instead. That is his work around and I have to agree with him it is not safe.

    I have also run into some hosting sites that are too dangerous to get to and Google warns me or it is just forbidden and so far these have been Russian hosting companies. So no work around for those.

    I guess these hosting sites that charge very little tend to attract the bad elements many times that love to do spam emailing. This hurts the rankings of that hosting site so you want to check to see how they deal with the bad players before signing up for hosting is my feeling now. Only support and give your money to hosting companies that have higher standards and will remove the bad players if proof is provided. One bad apple can affect the rest.

    I am a life long democrat but voted for Trump since I am fed up with the DNC with what they did to Bernie. But in hindsight I think Trump may actually take the gloves off with the status quo and do more for us struggling lower middle class. Obama didn’t do much for us. So disappointed with Wheeler too. We didn’t have much of a choice and I threw the dice with Trump since nothing else has worked so far. Hillary could not be trusted and was more like Obama which was awful. Did you know that student scores have nose dived since 2009 when Obama adopted Common Core?

    Recently Netflix had a documentary about copyright called Killswitch about this topic. Poor argument with the whole thing. They seemed to tie net neutrality with copyright infringement. Crazy reasoning. They didn’t address this but I think what Snowden did was good since what he was doing was warning us all that our personal content/information was being secretly stolen by the government. I think they had the obligation to at least let us know. I would say it was copyright infringement since they never got our permission to take our emails and phone conversation etc to collect and use. I think if they had asked most people would have said no and that is why they didn’t ask. I think there is a way to have security and privacy and no one has held them to that task yet. I hope Trump will.

    These companies for a monthly fee say they will track and do take downs for you but I am not convinced they do that much or nearly enough. I don’t know if they will be anymore successful than you doing it yourself. Hiring an attorney for us small entities is not even a reasonable consideration. It feels like whackamo having to spend so much time on deal with all the internet content stealing. It’s the wild wild west still.

    If there was a place where I could register my images for my blog and products and pay like 10.00 a month and it would automatically flag me if they show up in Google image searches elsewhere online, so I could check the sites out. If there is a problem I could click the flag and it will auto fill in a take down notice I could fill out but use their address and phone number as my agent for take down notices. That might be part of the answer. Again this is not rocket science and if I can think of this then why hasn’t a darn thing been done yet?

    I sell digital teaching resources and one of the biggest problems I have is these punks steal my product images or blog images to get unsuspecting folks to click to their borderline porn sites that are not teacher, parent or kid friendly. They get money for all the clicks their sites generate. I feel bad that folks were duped by my images this way.

    The reality is there really aren’t the tools available to us online to protect our content yet and I have to point a finger at the Silicon Valley for not putting in place the safeguards from the inherent stealing with the internet. The film Killswitch will show you the crazy mindset they have with the internet. No one seems to want to take responsibility for fixing it and like so many other things the can gets kicked down the road. The U.S. government and Silicon Valley need to just fix it since too much of the U.S. economy is now dependent on the internet commerce. I suggest folks write to Trump when he finally takes office.