Intellectual Property Enforcement Coordinator (IP Czar) Victoria Espinel has come out with the White House's recommendations on intellectual property enforcement
and, as you might imagine, they involve the same strategy as always: ratchet up the punishment. Now, a lot of the proposal is very narrowly focused on things like selling counterfeit products to the military. In situations like that, I don't have too much of a problem with what's being said. Those are clear cases of likely harm and potentially putting people in serious danger.
The problem, of course, is that the recommendations don't stick to these situations and start to stray pretty quickly. So let's look at a few points in the plan that raise some concerns:
Increase the Guideline range for intellectual property offenses committed by organized criminal enterprises/gangs;
Of course, who's going to be against that? After all, we keep hearing about how infringement funds organized crime and terrorism. Except, we don't, really. There was basically one such report, from RAND, which conflated a few issues and has been mostly debunked (including in the recent SSRC report
). But, even if we accept that there are organized crime groups involved in these sorts of things, the main fear here is how the government will define "organized crime enterprises/gangs." We've seen those terms stretched before in various contexts to include just a group of a few kids hanging out together. How long will it take until just some kids file sharing with each other are somehow labeled a "gang" for this purpose?
Increase the Guideline range for repeat intellectual property offenders.
Again, something that sounds innocuous enough until you realize that pretty much everyone
is a repeat intellectual property offender every single day. As such just wait and see how the government uses trumped up infringement charges against people to show that they're "repeat offenders."
Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;
Quite vague and potentially scary if it's not clarified. Streaming is a felony? Is that for the end user who does the streaming or the host? Does this mean someone who uploads to YouTube could risk felony charges? We've already seen how the government is prosecuting
a guy for embedding streams. Think of how many felons this rule might create without clear guidelines. And the "similar new technology" clause seems vague too. Does the White House really want to criminalize technologies before they even have a chance to see if they can help the market? For a White House that has been banging the drum on "innovation," this makes little sense.
Authorize DHS (including its component CBP) to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and
Yeah, because that worked so well
in these earlier domain seizures
in which DHS shared songs that were being offered on websites and the RIAA mistakenly claimed they were infringing, despite being sent by the copyright holders -- even claiming one song by an artist not affiliated with an RIAA label was infringing, despite having no right to speak for that song. The government already relies way too heavily on extremely biased parties in these situations. Allowing them to lean even more heavily on them rather than independent third parties seems extremely dangerous.
Give law enforcement wiretap authority for criminal copyright and trademark offenses.
Considering that the government now considers linking
to infringing files as a criminal offense, this seems like overkill again.
There's also a big section on dealing with counterfeit drugs. Here, again, there isn't necessarily an issue with trying to stop counterfeit drugs that are serious health risks. But, too often, the US and other countries have lumped counterfeit drugs in with perfectly safe grey market drugs imported from other countries. Not separating those things out is a problem.
Finally, there's one bit of oddity. Right at the very bottom, there's this:
Finally, we recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations
We've debated the performance rights tax for quite some time here. It's nothing more than a bailout for the record labels by taxing radio stations for advertising
music. In what world does it make sense to force someone to pay for advertising someone else's work. Anyone familiar with the history of payola would know that such a performance right is completely anti-market. When left to their own devices, the record labels have always wanted to pay radio stations to play music, knowing that it helps promote the music. But the performance right tax flips that equation over, and says that radio stations now have to pay.
But, really, the bigger question is what does this have to do with enforcement? I'm fine with Espinel going beyond just focusing on enforcement, if she's going to look for ways to actually help IP live up to its Constitutional mandate of promoting the progress. But this recommendation seems completely out of place in a document focused entirely on enforcement with this one non-enforcement issue tossed in at the end.
The thing is, every time the government ratchets up IP laws in ways that don't match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.