Espinel Offers 20 IP Legislative Recommendations

March 15, 2011. Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, offered twenty legislative recommendations to Congress regarding intellectual property law.

Ten of these recommendations pertain to penalties. Two would increase the maximum sentence for certain intellectual property crimes; five would increase the sentencing guidelines range for various intellectual property crimes; and three would provide for increased Department of Homeland Security (DHS) Customs and Border Protection (CBP) administrative penalties.

Five pertain to combating counterfeit drugs, and would not impact information technology.

Espinel also proposed that "in appropriate circumstances, infringement by streaming, or by means of other similar new technology" be made a felony.

Bob Pisano, of the Motion Picture Association of America (MPAA), stated in a release that "These legislative recommendations address the evolving marketplace and new ways that criminals are stealing, trafficking, and profiting off the creative work of the millions of men and women who work in our industry. Among the proposals is a recommendation to classify streaming, now a common method of illicitly distributing television and motion pictures, a felony under appropriate circumstances. Closing the legal gap between two methods of equally destructive illegal behavior unauthorized downloading and streaming adds more clarity to intellectual property law and, frankly, makes good common sense."

Espinel also proposed authorizing the DHS and CBP to share pre-seizure information with rights holders "to help DHS to determine whether the products are infringing or the devices are circumvention devices". She also proposed allowing DHS to share information about enforcement activities with rights holders "about, and samples of, circumvention devices with rightholders post-seizure". See, 17 U.S.C. § 1201, regarding "Circumvention of copyright protection systems".

She also proposed allowing the DHS to share information about enforcement activities with rights holders "that infringing goods have been excluded or seized pursuant to" an order of the U.S. International Trade Commission (USITC). See, 19 U.S.C. § 1337, regarding "Unfair practices in import trade".

She also proposed giving "law enforcement wiretap authority for criminal copyright and trademark offenses". Wiretaps pursuant to the criminal code may only be conducted pursuant to a court order. Moreover, these orders may only be issued when the application states that interception may provide or has provided evidence of violation of certain crimes, know as predicate offenses. See, 18 U.S.C. § 2516, regarding "Authorization for interception of wire, oral, or electronic communications". The list of predicate offenses is already huge.

Finally, Espinel proposed "creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations".

Previous Congresses have considered, but not enacted, legislation that would accomplish this. See, for the 111th Congress, HR 848 [LOC | WW], the "Performance Rights Act", and S 379 [LOC | WW]. There was also related legislation in the 110th Congress. See, story titled "Performance Rights Act Reintroduced" in TLJ Daily E-Mail Alert No. 1,896, February 10, 2009.

Mitch Bainwol, head of the Recording Industry Association of America (RIAA), stated in a release that this proposal "would finally close a longstanding and unfair loophole in copyright law that denies compensation to artists and record labels when their music is played over terrestrial radio. The proposal to make illicit streaming a felony is also appropriate and overdue."

The National Association of Broadcasters (NAB) stated in a release that "This is hardly a new policy position from the White House. NAB remains unalterably opposed to legislation creating an onerous, jobs-killing fee on America's hometown radio stations without offsetting provisions and benefits that recognize the unparalleled promotional value of radio airplay. NAB offered a legislative package to resolve this issue last year, which was summarily rejected by the musicFirst Coaltion. Our offer still stands."

Espinel's list of proposals does not include a proposal similar to S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act", or "COICA", in the 111th Congress.

Rep. Howard Berman (D-CA) stated release that "Los Angeles workers and businesses are known for their innovation and creativity, yet suffer disproportionately when their copyrighted works -- movies, music, and video games -- are stolen and illegally distributed. In my continued effort to stem this theft and protect local jobs and investments, I look forward to closely reviewing these recommendations and working with my colleagues to pass reasonable solutions to this growing challenge."

Sandra Aistars, head of the Copyright Alliance, stated in a release that “The Copyright Alliance applauds Intellectual Property Enforcement Coordinator Victoria Espinel for her attention to the vexing problem of IP infringement, particularly in the online environment."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "By taking a strong leadership role, the Obama administration is raising the bar on intellectual property enforcement ... The recommendations released today are important because they demonstrate a determination to bolster intellectual property protections for software and other industries affected by widespread piracy and counterfeiting. I urge Congress to act on the administration’s recommendations".

Michael Gallagher, head of the Entertainment Software Association (ESA), stated in a release that "Congress should give serious consideration to these recommendations -- many of which come from those on the front-lines of the government’s enforcement efforts".