Intellectual Property Breakfast Club Examines IP Enforcement

WASHINGTON, May 16, 2011 – The Intellectual Property Breakfast Club last week featured a keynote address by Erik Barnett, Assistant Deputy Director at the U.S. Immigration and Customs Enforcement (ICE) and subsequent panel with industry experts, taking a closer look at administration recommendations to expand the scope of IP laws and increase certain penalties for infringement.

Barnett’s keynote focused on “Operation In Our Sites,” an ICE initiative that focuses on stopping Internet counterfeiting and piracy.  The initiative seizes U.S.-based sites that provide illegal content via the web.  Critics allege that the seizures deprive domain registrants of due process.

Since June 30, 2010, according to Barnett, 120 sites have been seized by ICE, all of which were entirely commercial and profiting from trade in infringing goods.

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“These are sites… that are existing purely on ad revenue or subscription packages or sales or a combination of the three,” said Barnett. “Ultimately, they are purely violative.  We get a lot of questions about blogs, chat rooms, community forums – [we are] not interested; don’t have time.”

Barnett went on to note that Operation In Our Sites is intended to be one of several tools to prevent online infringement and that those from whom ICE seizes sites have several methods of recourse through the court system.

During the panel discussion, Jason Gull, a Senior Counsel, Computer Crime & Intellectual Property Section (CCIPS) of the United States Department of Justice, described some of the issues that occur with sites that stream content.

“There is not as a technical and factual matter, it is unclear whether we can show a violation of the distribution right or the reproduction right,” said Gull. “Part of this is a metaphysical argument about whether reproduction occurs in a buffer in a computer somewhere, but as a practical matter in court, it’s not clear that we can do that.”

Under copyright law, the content owner holds both the distribution and reproduction rights.  Individuals who reproduce or distribute copyrighted material without permission violate the rights of the content owner.

Chun Wright, an attorney who specializes in IP enforcement as well as Internet and technology law, described the difficulties associated with protecting IP.

“You’ll hear people in the enforcement world talk about it as a ‘whack-a-mole’ problem,” said Wright, “and it very much is, except the moles are on steroids and they’re mutating.”

M. Luisa Simpson, Executive Director of International Copyright Enforcement & Trade Policy at the Association of American Publishers, noted the changing face of infringement in the publishing world with the rise of new technology that is moving books and magazines increasingly online and onto portable devices.

“With the ubiquity of electronic reading devices that are now far smaller, lightweight, and easier to read, the scope of the piracy for our industry has grown,” said Simpson. “What we’re finding now is that there’re not just unauthorized digitized copies of printed books, but we’re finding the actual e-books, stripped of the encryption, can be downloaded onto these readers.”

David McClure, President and CEO of the US Internet Industry Association, cautioned against increasing penalties against enforcers rather than improving the means by which the current laws are enforced.

“I think is has to be recognized that the law enforcement agencies have to get a lot better than they are right now at the game,” said McClure.  “I don’t think any of the law enforcement agencies would disagree with this; they’re being badly outgunned.”

The panel further discussed issues of law enforcement’s effectiveness in prosecuting infringers, the rhetoric surrounding the debate on IP enforcement and, more generally, where to strike the balance between protecting content owners and protecting citizens from the overreach of government.

“When we’ve got valid legal process, we want to be able to obtain evidence,” said Gull, “and that’s critical not just in IP, but in all sorts of law enforcement issues.”