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White House Calls for Tougher Copyright Laws to Protect America’s Intellectual Property

Published onApr 16, 2011
White House Calls for Tougher Copyright Laws to Protect America’s Intellectual Property

On March 15, Victoria Espinel, the White House’s first Intellectual Property Enforcement Coordinator, issued 20 legislative recommendations to Congress calling for tougher copyright laws and greater enforcement authority.  The white paperrecommendations ranged from Congress making illegal streaming of music and movies a felony to having wiretap authority for those suspected of being involved in copyright infringement.   According to Espinel’s White House Blog, these “legislative recommendations exemplify the Administration’s commitment to protect and grow jobs and exports, as well as to safeguard the health and safety of our people.”

Even though copyright law already carries a felony penalty, the white paper points out that it is not clear whether illegally streaming music and movies amounts to unauthorized distributions of copyrighted works.  The Administration explained that “to ensure the Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, Congress should clarify that in “appropriate circumstances” illegal streaming could constitute as a felony.

In the wake of these recommendations calling for wiretapping and felony charges for illegal online streaming of content, the million-dollar question is, of course, do these recommendations go too far? Interestingly enough, the question of support for stricter IP laws does not seem to turn on one’s political affiliation.  Rather, the issue seems to be partisan in nature.  Republican Representative Bob Goodlatte, who chairs the House subcommittee that writes copyright law said, “I’m committed to strengthening the laws that promote investment, innovation and creativity at home.  I share the view that our criminal and IP laws need to be modernized to ensure that legitimate online commerce is not crippled by rampant piracy and counterfeiting, much of which originates overseas.”  Even in October 2008, former President Bush signed the Prioritizing Resources and Organization for Intellectual Property Act (Pro IP ACT) into law, which effectively led to the creation of Espinel’s position and enhanced penalties for infringement.  History has shown that unless legislative proposals “go too far,” topics such as digital copyright is not a “particularly partisan topic.”

Before attempting to provide an answer to my previously posed question, I first want to point out that this is not the first time that such recommendations for tougher copyright laws have been made.  In 2006, during the Bush Administration, Wisconsin Representative Jim Sensebrenner sponsored the Intellectual Property Protection Act of 2006 (IPPA), which like the white paper, called for enhanced sentencing for copyright infringements and wiretap authority in copyright investigations.  In addition, both the IPPA and subsequent Actssuch as the Pro IP ACT, called for authority to seize any computer or network hardware used in infringement activities.  While politicians on both ends of the political spectrum support stricter copyright laws, some public advocacy groups argued that such a provision could have harmful results to the average consumer.  Public Knowledge President Gigi B. Sohn said in a statement, “Seizing expensive manufacturing equipment used for large-scale infringement from a commercial pirate may be appropriate.  Seizing a family’s general-purpose computer in a download case, as this bill would allow, is not appropriate.”

Fast-forwarding to the Obama Administration, the present recommendations gathered both praise and criticism from a range of groups.  The U.S. Chamber of Commerce lauded the Administration’s clarion call for stricter copyright laws.  In a statement issued shortly after the white papers were released, the Chambers stated,  “We are particularly encouraged to see several of our top legislative priorities covered by the white paper, especially the issue of rogue websites. The paper makes clear that the Administration shares Congress’ commitment towards combating websites dedicated to the sale or distribution of infringing products.”

However, not everyone is so quick to praise the Obama Administration for its efforts in securing greater enforcement authority and stricter copyright laws. Computer & Communications Industry Association President, Ed Black, referring to the expansion of wiretap authority, felt that the recommendation went too far.  Black said in a statement, “Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content’s every desire, including curtailing civil liberties by expanding wiretapping of electronic communications.”  Furthermore, Black goes on to question the extent of such a recommendation, sardonically adding, “Maybe we should be grateful our government only wants to make streaming a song or movie a felony with potential prison time as punishment.  What’s next[?] [C]orporal punishment?”

So do the recommendations go too far? One has to wonder if wiretapping individuals suspected of copyright infringements doesn’t cross the line just a little. While I am not totally sure that I am in support of the idea of expanded wiretapping authority for copyright infringers, I do not entirely subscribe to Ed Black’s assessment of the recommendation.  Black likens the increased wiretapping authority to recent headlines concerning, “dictators spying on citizens online.”  Therefore, in true Socratic fashion, I will answer my own question with yet another: assuming Congress accepts these tougher recommendations – does that equate to Big Brother watching via wiretapping or is America just effectively playing the role of the observant watchdog?

I tend to agree with the latter. Tougher recommendations for IP violations, whether enacted or not, raises public awareness to the Administration’s commitment to addressing the IP violations that run rampant in the technology age. Further, I am inclined to believe that this awareness could potentially have a deterrent effect amongst potential copyright infringers.  Having said this, I am inclined to agree with Bob Pisano, the interim president of the Motion Pictures Association of America, who said,  ”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.”


*Tierryicah Mitchell is a second-year law student at Wake Forest University School of Law and is Secretary of the Black Law Student’s Association. She holds a Bachelor of Arts and Science in Political Science and History from the University of North Carolina at Chapel Hill.  Upon graduation in 2012, Ms. Mitchell plans to work for the federal government.

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