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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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March 17, 2011

US Wants More Penalties on IP Violators

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Posted by Alan Wexelblat

Under the ponderous title "Administration’s White Paper on Intellectual Property Enforcement Legislative Recommendations", the Obama Administration has issued its latest call for more punishment of IP criminals.

The 20-page PDF is a hodgepodge of wishlist items an enforcement bureaucracy can dream up, and it has the unpleasant behavior of lumping together all forms of IP crime. On the one hand, when talking about the manufacture of counterfeit drugs and fraudulently marketing them, you're talking about a serious crime with actual bodily harm or even life-threatening implications. On the other hand, the document does nothing to distinguish this level of crime from the kinds of behavior that have come to be treated as major crimes in the Copyright Wars - sharing files, recording movies off theater screens, uploading promo copies to torrent sites, and so on.

For example, the report recommends "Increase the U.S. Sentencing Guideline range for repeat intellectual property offenders" without any effort to distinguish the types of offenders, or the impact of the offense. This would, presumably include someone who shared multiple songs over a P2P network. Or perhaps you can throw mom in jail for longer if both her son and her daughter share music with their friends, or rip lots of CDs to their iPods.

While the introduction to the document claims that "legislative changes [will] increase the effectiveness of U.S. enforcement efforts" what this comes to in plain English is the idea that if you make more things into crimes, and make the penalties for crimes bigger then you've somehow improved enforcement. I fail to see that linkage.

There are a few proposals to increase the range of law enforcement powers; for example, "Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses." This might be an effective move. Unfortunately they're placed at the same level as recommendations such as "Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure."

In case you can't parse that, what it says is that the government will give commercial entities access to things like crack programs. Not that a company couldn't get a crack program itself, but knowing that this crack program is effective against that DRM system is potentially a competitive commercial advantage for the company getting information from DHS, and has no relationship at all to DHS's enforcement efficiency.

Finally, tucked in at the end of the report is a recommendation to create a new copy right:

The Administration recommends that Congress create a right of public performance for sound recordings transmitted by over-the-air broadcast stations.

The language of the justification for this talks about "overseas royalties" but that's a smokescreen, in my opinion. The real goal here is helping the Cartel claw back money from broadcasters. They succeeded in doing this with Web radio about four years ago. Now they want to go after all broadcasters and Obama's Cartel-controlled DoJ is champing at the bit to help them out.

(h/t to David Post from Volokh Conspiracy again, for pointing me to this one.)

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