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May 29th, 2015 at 11:03 am
Pass Free Trade Legislation, But Ignore Calls to Insert “Fair Use” Provisions That Weaken American IP Protections
Posted by Timothy Lee Print

We at CFIF strongly advocate both free trade and intellectual property (IP) protection.  Although typically distinct policy questions, they are currently intertwined as Congress finally and fortunately moves toward passing free trade legislation.

The pending legislation rightly demands that trading partners recognize American IP rights, but that has naturally drawn fire from some of the usual suspects (e.g., Google, the Internet Association, et al.) who tend to oppose stronger IP rights because those protections tend to run contrary to their own particular business interests.  Specifically, those interests seek to include copyright limitations in free trade bills, including mandatory “Fair Use” exceptions.

That would be a bad idea.

Among other problems, those voices misstate domestic law in suggesting that “generally, an Internet company in the U.S. is not held liable for the conduct or content of third parties who use its platform.”  While existing law provides a level of immunity for Internet companies, such immunity is limited and does not excuse violations in numerous circumstances, including:  (1) when the interactive computer service materially contributes to the illegal content; (2) when the interactive computer service itself engages in fraud/misrepresentation; (3) when the interactive computer service engages in, or aids and abets, criminal activity; or (4) if the illegal activity violates IP laws.  Accordingly, omitting discussion of an Internet company’s liability for copyright infringement is particularly and intentionally misleading.  American law regarding the liability of intermediaries is infinitely more complicated, and intermediaries may face liability under a variety of circumstances, including where they induce the infringement of third persons (the Grokster standard), and in other circumstances in which they meet the standards of contributory infringement or vicarious liability.  Additionally, “safe harbors” under applicable law remain conditioned on a number of affirmative acts on the part of intermediaries, such as promptly taking action once they learn of infringing content (rather than merely upon receiving formal notice), maintaining policies with regard to repeat violators and adoption of standard technical measures designed to prevent infringement.

Thus, domestic law does not extend some blanket, general exemption from liability for Internet companies with regard to the conduct of third parties, and the scope of liability in the U.S. continues to evolve, both from a judicial standpoint and a legislative one.  Furthermore, Congress is presently considering the appropriate contours of the safe harbors established in the 20-year-old DMCA, with many members expressing concerns about the levels of piracy that prevail, and the fact that “notice and takedown” has been largely ineffective in reducing piracy levels, with a particularly devastating impact on individual creators and actors who can ill afford to pursue takedowns only to have the same content immediately re-uploaded.  Accordingly, it remains unclear exactly what liability regime the US should be seeking to export.  But it’s absolutely clear that American interest in foreign markets remains primarily in promoting greater discipline and accountability to reduce piracy levels that deprive the US billions of dollars in earnings.

Furthermore, U.S. trade agreements already include provisions relating to exceptions and limitations.  They also already recite the relevant provisions of international law that define the scope of permissible exceptions and limitations.  Those binding provisions are contained in a variety of agreements, including the Berne Convention, TRIPS, the WIPO Treaties (WCT and WPPT), and each of our free trade agreements.  Other nations have employed different means to achieve what they believe is a proper balance between protection and limitations, but remain they bound by the provisions of international law.  A particularly wide variance exists in how common law and civil law nations approach exceptions and limitations.  More specifically, courts in civil law countries are not permitted to interpret general provisions, and legal standards that require the weighing of different factors are a poor fit.  As a result, legal provisions such as Fair Use are ill-suited to the jurisprudence of most countries across the globe.

Moreover, as the world’s leading producer and exporter of copyright protected materials, the U.S. maintains a tremendous economic interest in ensuring the effective protection of copyright works.  While all parties strongly endorse balanced copyright protection that both protects works and provides reasonable flexibility, the biggest problem in foreign markets is lack of discipline, and not overboard protection.

It is critical that Congress passes free trade legislation currently on its agenda, and those who seek to exploit it as a device to weaken American IP protections must be rejected.

May 29th, 2015 at 8:47 am
Is Global Warming Really the World’s Biggest Threat?
Posted by CFIF Staff Print

Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs, discusses why global warming is not the world’s greatest threat, why Vice President Joe Biden was wrong on his 2010 prediction about Iraq proving to be one of the greatest achievements of the Obama administration, and why former President George W. Bush is not to blame for ISIS.

Listen to the interview here.

May 26th, 2015 at 8:25 pm
Fifth Circuit Maintains Roadblock to Obama Immigration Amnesty

Today the Fifth Circuit Court of Appeals refused to lift an injunction prohibiting the Obama administration from implementing an executive amnesty program for millions of illegal immigrants.

Ken Paxton, the Attorney General of Texas who is leading a 26 state lawsuit against President Barack Obama’s amnesty order, applauded the court for stopping “a drastic change in immigration policy” since the program bypassed congressional approval. Texas is alleging significant financial burdens on state taxpayers if the federal government is allowed to proceed.

The Obama administration is now considering whether to appeal the Fifth Circuit’s opinion to the U.S. Supreme Court, a move which could backfire and derail a policy goal long sought by immigration activists.

This much we know: the rule of law has been preserved, at least for today.

H/T: New York Times

May 26th, 2015 at 3:05 pm
This Week’s “Your Turn” Radio Lineup
Posted by Timothy Lee Print

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Robert Pondiscio, Senior Fellow and Vice President for External Affairs at the Thomas B. Fordham Institute – Lessons from the Opt Out Debate;

4:30 CDT/5:30 pm EDT:  Florida Senator Don Gaetz – 2015 Legislative Session Continues;

5:00 CDT/6:00 pm EDT:  Steven Bucci, Director, Douglas and Sarah Allison Center for Foreign and National Security Policy at The Heritage Foundation – ISIS;

5:15 CDT/6:15 pm EDT:  Daniel Allott, Deputy Commentary Editor at the Washington Examiner – The GOP Field Grows; and

5:30 CDT/6:30 pm EDT:  Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – Current News Regarding the FCC, ISIS and other Issues.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

May 24th, 2015 at 6:49 pm
Ramirez Cartoon: Never Forget the Price of Freedom
Posted by CFIF Staff Print

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

May 22nd, 2015 at 12:23 pm
Clock Ticking Down on SCOTUS’ Decision On ObamaCare Subsidies
Posted by CFIF Staff Print

Ashton Ellis, CFIF Contributing Editor, discusses what Congress should do if the Supreme Court strikes down ObamaCare subsidies for health insurance purchased on exchanges set up by the federal government, why some Americans had to pay back the IRS for ObamaCare subsidies, and the negative implications of ObamaCare across the nation.

Listen to the interview here.

May 21st, 2015 at 12:25 pm
More GOP Debate Improvements

Add Daniel Henninger to the list of conservatives offering up new ideas to get the most out of the upcoming GOP presidential debates.

With as many as 19 Republicans possibly running for president, “something more is needed this time” than just a one-size-fits-all gabfest.

“In addition to the traditional debates, the candidates or their supporters should underwrite a series of smaller debates/conversations,” writes Henninger. “Divide the 19 into groups of four or five candidates, randomly selected. Pick the issues, and go at it. Give voters a chance to see who these mostly interesting people are and how their minds work outside the confines of a 60-second timer.”

In my column this week I lay out a proposal to randomly assign candidates into debating pairs so debaters can get more than the usual four to six minutes to speak. Henninger’s idea to put groups of four or five together may be more workable with such a large field. Either way, the key is to give every candidate sufficient time to make his or her case for the nomination.

There are several ideas for improving the quality of debate this go around. Let’s hope the people in charge of the process take some of them to heart.

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May 21st, 2015 at 11:40 am
Ramirez Cartoon: Mission Accomplished Redux
Posted by CFIF Staff Print

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

May 20th, 2015 at 3:11 pm
More Insurance, Less Health Care?

A new report says that the number of Americans who are ‘underinsured’ is 31 million people – double the figure from 2003.

Being underinsured means that a person has access to health insurance, but doesn’t use it to get healthy because the cost is too high.

ObamaCare – with the popularity of its high deductible insurance plans – may make the problem worse.

“The steady growth in the proliferation and size of deductibles threatens to increase underinsurance in the years ahead,” says the Commonwealth Fund report.

“People who have high deductibles do tend to skimp on healthcare,” Sara Collins, the study’s lead author, said to reporters.

That’s because a trip to the doctor’s office can generate thousands of dollars in out-of-pocket expenses before the insurance company contributes a penny.

The Obama administration has claimed a lot of credit for lowering the uninsured population, but has been unsurprisingly mum about the uptick in the number of underinsured Americans. If this trend continues, millions of people will be forced to pay for a financial product they cannot afford to use, but dare not risk going without since the IRS has the power to penalize.

That sounds like a policy opportunity conservatives would do well to exploit.

H/T: The Hill

May 18th, 2015 at 6:13 pm
CMS Hush-Hush on New ‘Epic’ Medicaid Rules

The Centers for Medicare and Medicaid Services won’t say what’s coming before it announces new rules for long-term managed care, the first in 13 years.

“The number of people enrolled roughly quadrupled, from 105,000 in 2004 to 389,000 in 2012,” reports National Journal. “And overall Medicaid spending on long-term care is projected to balloon from $60 billion annually to more than $100 billion in 2023, the Congressional Budget Office has estimated, as the baby boomers get older and require more care.”

Health care industry leaders are anxiously awaiting the new regulations without any indication of what’s coming. CMS has been working on the updated regulatory scheme for more than a year, and so far is keeping the people most effected in the dark.

“It’s a lot like the recent Mayweather-Pacquiao fight,” a representative of managed care plans is quoted as saying. “There’s lots and lots of hype around it, and it’s either going to be epic or it’s going to kind of fizzle.”

With President Barack Obama’s penchant for going big, it will be shocking if his administration opts for fizzle instead of epic. That nameless bureaucrats have this much control over major policy decisions says a lot about the real do-nothing tendencies of Congress. Rather than debate and deliberate over such a consequential matter, Members of Congress have outsourced their lawmaking function to an executive agency.

That’s not leadership. It’s a dereliction of duty.

May 15th, 2015 at 10:59 am
Video: Congress’ ObamaCare Fraud
Posted by CFIF Staff Print

In this week’s Freedom Minute, CFIF’s Renee Giachino demands accountability for the apparent fraud that took place enabling Members of Congress and their staff to circumvent clear rules under ObamaCare in order to keep their taxpayer-subsidized health insurance. 

May 14th, 2015 at 9:54 am
Bipartisan Support Growing to Repeal ObamaCare Medical Device Tax

A group of 18 House Democrats sent a letter recently to Speaker John Boehner (R-OH) and Minority Leader Nancy Pelosi (D-CA) requesting “timely passage” of a bill to repeal perhaps the most unpopular ObamaCare tax.

The medical device tax levies a 2.3 percent fee on medical devices, and is credited with causing increased prices and a decline in jobs within the manufacturing industry. Much of the Democratic support for repeal comes from members representing states with large device making companies in Minnesota and Indiana.

In a divided Congress, repealing the medical device tax may be the best way demonstrate bipartisan opposition to ObamaCare. Last year, 79 Senators voted to repeal this tax though then Majority Leader Harry Reid (D-NV) refused to bring it to a floor vote. With Republicans in control of the chamber, a vote is likely to occur.

Even if President Barack Obama vetoes the measure – which the White House has promised he will do unless Congress imposes another tax to offset the revenue loss – the mounting pressure to get rid of the medical device tax indicates that there are political victories to be had, if congressional leaders will push for them.

May 14th, 2015 at 7:18 am
Hawaii’s ObamaCare Exchange Out of Money

Add Hawaii to the growing list of states that can’t afford to continue funding their financially unsustainable ObamaCare exchange.

“The state’s exchange is drowning in their own debt and is set to shut down by September 30,” writes Kristina Ribali of the Foundation for Government Accountability. “Administrators had been hoping to get a funding boost from state lawmakers, during their current legislative session, but that will not happen.”

Hawaii’s death spiral became clear in January when the federal government notified the state that it was out of compliance with ObamaCare’s performance benchmarks. By this year state exchanges have to prove their long term financial viability, and their IT systems must be integrated with the Medicaid database. The latter requirement ensures that applicants are correctly channeled to the appropriate government assistance program.

Hawaii – like Oregon, Nevada, New Mexico, Colorado, Minnesota, Maryland, Massachusetts and Vermont – isn’t generating enough revenue in enrollment fees to make its exchange solvent. Its failure to integrate IT systems is likely the final blow before the state hands over its exchange function to Healthcare.gov, the federal counterpart.

Like the other states just mentioned, Hawaii’s ObamaCare exchange failure has been expensive: $204.3 million.

And counting…

May 13th, 2015 at 8:03 pm
The Two Faces of T-Mobile

The recent release of the Apple Watch was a momentous occasion that has become routine for American consumers: another breakthrough mobile product hitting the marketplace. Whether new devices or continuous improvements to smartphones and other devices on which we all rely, almost all of us use gadgets that just ten years ago would have been considered science fiction.

Less well known to consumers is the technical foundation of the entire ecosystem upon which such devises operate. Specifically, wireless spectrum is the invisible infrastructure that carries data between devices and to the broader Internet. Wireless companies compete fiercely for this resource so that they can provide good service for their customers.
 
That’s why – despite the fact that the Federal Communications Commission (FCC) is auctioning off coveted broadcast spectrum next year, an eternity in tech terms – the jockeying between potential bidders has already started. Two of the major players in particular, Sprint and T-Mobile, have been ceaselessly calling for the FCC to create auction rules that benefit them at the expense of their competitors. Their latest request is for a larger set-aside to limit the amount of spectrum on which competitors AT&T and Verizon can bid. 

This isn’t the first time the two companies have made such a request.  The FCC didn’t accept it last time, and it shouldn’t now as the only change is that Sprint and T-Mobile now are pushing their shared agenda through the recently (and conveniently) formed “Save Wireless Choice” coalition.

This is a terrible idea for several reasons, not the least of which is the fact that Sprint and T-Mobile are dynamic companies that compete fiercely in the wireless industry. Don’t just take our word for it. On a recent call with Wall Street analysts, T-Mobile CEO John Legere bragged that T-Mobile has “a great spectrum portfolio. That’s allowed us to be smart and opportunistic,” and claimed that the company was “off to an incredible start to 2015 with the best customer growth in the industry fueled by disruptive Un-carrier moves and the network that continues to be America’s fastest.”  Similarly, Sprint CEO Marcelo Claure asserted that he “couldn’t be more confident that now [Sprint has] the right plan to be successful” and acknowledged Sprint’s “rich spectrum portfolio.”
 
Legere and Claure’s comments to Wall Street make their plea to the FCC – that they cannot compete with AT&T and Verizon in the upcoming auction or in the industry long-term – completely disingenuous. Furthermore, Sprint chose to sit out of the recent AWS-3 auction, and it was DISH, not AT&T or Verizon, that outbid T-Mobile most on licenses it sought but didn’t win.
 
Indeed, it was DISH’s shady dealings during the AWS-3 auction that demonstrate the danger of rules that favor certain players over others in the marketplace. DISH used shell companies to take advantage of the FCC’s Designated Entity program, a program that is supposed to help small companies buy spectrum by giving them a discount.  That sleight of hand with DISH will cost taxpayers a stunning $3.3 billion unless the FCC investigates and rejects the taxpayer-funded discount.
 
At the end of the day, Sprint and T-Mobile are massive, competitive companies backed by large, foreign corporations, Softbank and Deutsch Telekom. Even if that were not the case, the recent experience with DISH should be a giant red flag about the unintended consequences of rules that favor certain companies.
 
In order for consumers to continue reaping the benefits of the wireless revolution, they need more spectrum to be allocated in the most efficient way possible. In the 2016 incentive auction, that means straightforward rules that treat all bidders equally. This principle has taken us to where we are right now, and it would be a mistake to jeopardize this progress by giving in to the self-serving pleading of two companies.

May 11th, 2015 at 3:01 pm
Resist the Nanny State with Private Citizen Defense Funds

Charles Murray at AEI has a thought-provoking idea for pushing back against the Nanny State: private citizen defense funds.

“People don’t build tornado-proof houses; they buy house insurance,” Murray explains. “In the case of the regulatory state, let’s buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defense against the government’s allegation even if – and this is crucial – we are technically guilty.”

Defending the technically guilty is designed to make overzealous regulators think twice before going after someone. The point is to concentrate enforcement resources on the worst offenders – not the weakest targets.

Murray suggests two ways of funding his citizen defense initiative. “The first would be a legal foundation functioning much as the Legal Services Corporation does for the poor, except that its money will come from private donors, not the government. It would be an altruistic endeavor, operating exclusively on behalf of the homeowner or small business being harassed by the regulators. The foundation would pick up all the legal costs of defense and pay the fines when possible.”

But wait, there’s more!

“The other framework would be occupational defense funds. Let’s take advantage of professional expertise and pride of vocation to drive standards of best practice,” says Murray. “For example, the American Dental Association could form Dental Shield, with dentists across America paying a small annual fee. The bargain: Dentists whose practices meet the ADA’s professional standards will be defended when accused of violating a regulation that the ADA has deemed to be pointless, stupid or tyrannical. The same kind of defense fund could be started by truckers, crafts unions, accountants, physicians, farmers or almost any other occupation.”

Though it would be nice if some of the great ideas touching on regulatory reform – for example, the REINS Act – are signed into law someday, the wonderful thing about Murray’s idea is that it could go into effect without any helping hand from government.

You can read the entire article at the Wall Street Journal.

May 11th, 2015 at 2:25 pm
This Week’s “Your Turn” Radio Show Lineup
Posted by CFIF Staff Print

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: Troy Senik, CFIF Fellow and Editor-in-Chief at Ricochet: Presidential Campaign 2016 Field Grows More Crowded;

4:30 CDT/5:30 pm EDT: Ashton Ellis, CFIF Contributing Editor, Author, and Adjunct Professor at Pepperdine University School of Public Policy: Latest on ObamaCare Subsidies;

5:00 CST/6:00 pm EDT: Dr. Tom Stossel, Visiting Scholar at American Enterprise Institute: Medical Innovation and “Pharmaphobia: How the Conflict of Interest Myth Undermines American Medical Innovation”; and  

5:30 CDT/6:30 pm EDT: Tzvi Kahn, Senior Policy Analyst for the Foreign Policy Initiative: Iran, nuclear weapons and terrorism on America’s shores.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

May 8th, 2015 at 10:28 am
Why Congress Should Allow the Export-Import Bank to Expire
Posted by CFIF Staff Print

In an interview with CFIF, Mac Zimmerman, Director of Policy at Americans for Prosperity, discusses why Congress must allow the Export-Import Bank to expire and how the bank unfairly hurts domestic companies and risks billions of taxpayer dollars.

Listen to the interview here.

May 5th, 2015 at 7:48 pm
Get ObamaCare Out of the Health Insurance Exchange Business

Health insurance exchanges are a great idea – as long as the government isn’t the one running them.

“In a private exchange, an employer can make a defined contribution to a tax-free group plan chosen by the worker,” explains Robert Moffit. “If the worker purchases a less expensive plan, the worker can keep the difference in savings. A worker who wants a more expensive plan can top off the employer’s contribution with her own money.

“In a well-run private exchange, self-insured employers can offer greater flexibility in benefit design, allowing workers and their families choice among a variety of health plans offered by multiple carriers,” Moffit continues. “With cost calculators, plan and provider performance ratings, and easily accessible network and formulary information, workers are suddenly empowered to make well-informed health-care decisions. In the style of 401(k) pensions, the private exchange could emerge as the transformative platform for a revolution in health-care financing.”

Interestingly, enrollment in private health insurance exchanges is now at 6 million – double what it was in 2014. That’s almost equal to the 7+ million currently enrolled through Healthcare.gov, the federal ObamaCare exchange.

One way to move health insurance reform away from the top-down, government-run model of ObamaCare would be to grant vouchers to individuals and families that don’t get coverage from an employer. Government could then go back to what it does best – giving out money – while letting the private sector do its job – delivering services at an affordable price while still making a profit.

Best of all: Almost 20 fewer government bureaucracies.

May 4th, 2015 at 7:59 pm
ObamaCare Exchanges Are Losing Money

The reason 35 states chose not to build a local ObamaCare exchange – even though the federal government made billions of dollars available to do so – is pretty simple: After an initial burst of funding the a state must foot the bill to maintain it.

That’s turning out to be a very costly proposition.

Consider Oregon.

“The case of Oregon is the most extreme,” explains an editorial in the Washington Examiner. “After spending $200 million to develop its own health insurance exchange, the Beaver State was forced to abandon it altogether because of pervasive and intractable technical problems.”

It gets worse.

“Tiny Vermont spent roughly $4,000 for every uninsured Vermonter to develop its exchange – more than enough to buy a pre-ObamaCare policy for everyone for an entire year,” says the editorial. “And yet after spending so much, the Green Mountain State may soon follow Oregon’s lead in abandoning its creation. Minnesota faces a similar situation.”

Recall that ObamaCare’s upfront establishment grant money was designed to make it seem like the controversial health law didn’t add to the federal deficit by enticing states to take on the legacy costs of operating the exchanges. With Healthcare.gov becoming the de facto nationwide ObamaCare exchange, that gamble has backfired, but not before wasting lots of taxpayer money.

May 4th, 2015 at 3:11 pm
Ramirez Cartoon: In Hillary We Trust
Posted by CFIF Staff Print

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.