By Dugie Standeford for Intellectual Property Watch
The United States government and the US creative industries last week signalled a new crackdown on intellectual property (IP) infringement at home and abroad. In a flurry of activity, the Bush administration proposed unprecedented changes to copyright enforcement laws, key entertainment industry groups and companies partnered to fight for stronger IP rights, and a bipartisan congressional panel named and shamed five countries for uncontrolled piracy.

US Attorney General Alberto Gonzales outlined his legislative proposal, the “Intellectual Property Protection Act (IPPA) of 2007,” in a 14 May letter to Speaker of the House of Representatives Nancy Pelosi (D-California) and Senate President Robert Byrd (D-West Virginia).

Among the provisions in the letter are one that allows prosecutors to file infringement charges even if a copyright has not been registered and another that criminalises attempted copyright infringement. The IPPA harmonises civil and criminal forfeiture laws, and authorises seizure not only of property used to manufacture infringing copies but also of items “intended to be used” for such purposes.

Another section treats export of infringing copies as an infringement of the distribution right, aligning it with current law that treats importation of such copies as infringement, and subjects both to criminal as well as civil sanctions. In addition, the IPPA creates new forfeiture, destruction and restitution provisions for offences contained in the US Digital Millennium Copyright Act, and boosts penalties for repeat criminal offenders.

The measure also stiffens sanctions for counterfeiting offences that endanger public health and safety, raising the maximum from 10 to 20 years’ imprisonment where a defendant knowingly and recklessly causes or attempts to cause serious bodily injury, and increasing the maximum to life imprisonment where the perpetrator knowingly or recklessly causes or attempts to cause death. In addition, IPPA adds criminal infringement of copyright and trafficking in counterfeit goods or services to the list of offences for which law enforcement agencies can use wiretaps.

The IPPA’s future is uncertain at this point since no one in Congress appears to have come forward to sponsor it. The Justice Department did not reply to a request for information.

Public interest group Public Knowledge accused the government of recycling a 2005 legislative package which “continues to be full of bad ideas today.” Public Knowledge, along with the Electronic Frontier Foundation, Computer Professionals for Social Responsibility and others, is part of a Digital Freedom Campaign to safeguard the right of creators to use digital technologies “without fear of unreasonable government restrictions or costly lawsuits.”

The newly launched Copyright Alliance, however, welcomed Justice’s tougher stance. The alliance - which opened for business 17 May and whose 29 members include the Recording Industry Association of America, Motion Picture Association of America, Microsoft and Walt Disney - is “pleased that the US Attorney General recognises the harm caused by piracy of copyrighted works,” said Executive Director Patrick Ross. “We would be supportive of congressional efforts to provide hard-working law enforcement officials more resources to enforce copyright laws.”

Dow Lohnes IP attorney James Burger questioned the meaning of attempted infringement. “If I copy and widely distribute something that has no copyright (e.g., the Constitution of the United States) but ignorantly believe is copyrighted, have I ‘attempted to infringe’?”

In US law, the “fair use” defence blurs the line between infringing and non-infringing conduct, so bringing into copyright a crime of an attempt to infringe “just isn’t a good idea,” Burger said. In cases of organised crime, where CDs and DVDs of commercial quality are produced, the full weight of civil and criminal law should fall on the perpetrators, Burger said. “But holding a kid who loads a peer-to-peer programme on his computer liable for ‘attempting to infringe’ is going too far.”

Also last week, the bipartisan Congressional International Anti-Piracy Caucus unveiled its 2007 international piracy watch list, accusing China, Russia, Mexico, Canada and Malaysia of “alarming levels” of copyright infringement that cost US firms US$18 billion annually in lost sales.

Lawmakers said they will focus particularly on China and Russia, which “stand out because of the scope and depth of their piracy problems” and their lack of political will to confront them. The US Trade Representative’s office released its annual watch list several weeks ago.

Meanwhile, Justice announced its fiftieth felony conviction from global anti-piracy initiative Operation FastLink. Christopher Eaves of Texas pleaded guilty to a single count of conspiracy to commit copyright infringement for his involvement in the pre-release music group Apocalypse Crew, which acquires digital copies of songs and albums before they are commercially released in the US and distributes them online, the agency said. Eaves, who will be sentenced in August, faces up to five years’ imprisonment and a US$250,000 fine.

Enforcement Up in Europe

Stronger copyright enforcement also is an issue in Europe, where the European Commission’s controversial IP Enforcement Directive is under review by the European Council of ministers (IPW, European Policy, 26 April 2007). It would outlaw commercial-scale, intentional infringement as well as its aiding, abetting and inciting, but not attempts to infringe.

On 21 May, police in the United Kingdom made their first arrest for the unlicensed sale of music under legislation introduced in January 2007 to combat online fraud. The arrest followed a pan-European investigation by the International Federation for the Phonographic Industry and the British Phonographic Industry into an online voucher system allegedly launched by Russian music site allofmp3.com when major payment companies such as PayPal withdrew their payment facilities due to copyright piracy, the industry groups said.

Finally, a report this month by the UK Parliament Culture, Media and Sports Committee urged the government to lobby the European Commission to extend copyright protection for sound recordings to at least 70 years. MPs also want Internet service providers to shoulder more responsibility for policing their networks for infringing content.

Dugie Standeford may be reached at info@ip-watch.ch.