The Department Of Justice Stakes Out a New Battlefront in IP Law: A Look at the New Task Force on Intellectual Property

In another maneuver in the on-going battle to curb cybercrime the Department of Justice has established a new Task Force on Intellectual Property focused on developing and implementing strategies to prevent intellectual property crimes. Emphasis is placed on the word “new” because both the Clinton and Bush administrations each created task forces to demonstrate their respective commitments to intellectual property. But what can the Task Force do that is not already being done? No one will contend that the previous administrations thought lightly of IP crime, especially in a nation where property rights, while not quite rising to the level of a right to life (with all apologies to Mr. Locke), form a basic element of our conception of freedom.

Joining forces with local, state, and international organizations to fight the rising number of IP crimes, the new task force is primarily commissioned to develop the administration’s policy towards effective enforcement. While Attorney General Holder did not specify which of the myriad problems facing IP enforcement the task force will address, a string of recent Obama appointments suggest peer-to-peer file sharing may be one. In addition to their own civil enforcement, the RIAA and MPAA have been calling for stricter criminal enforcement efforts ever since the digitization of the world made cybercrime convenient and fun. But what can a new task force do beyond arguing the constitutionality of $675,000 verdicts against college students?

The central difficulty facing the task force in enhancing enforcement efforts is detection. Cybercrime is one of few areas where the technology to circumvent the law while avoiding detection is readily available and easy to use. In some cases, the crime is evident, such as when a criminal syndicate floods the market with a counterfeited pharmaceutical drug. However, unlike most traditional crimes, many IP crimes can be committed from the comfort of a person’s living room. Proxy servers can hide a user from watchful eyes and innumerable programs can conveniently erase the last traces of evidence on a criminal’s computer. The breadth of access provided by an open internet coupled with the expanding technological acumen of the average citizen and the tools made readily available by software developers makes traditional crime detection almost impossible.

An ambitious task force may address detection problems by proposing sweeping and controversial access controls or network monitoring. While either could give the Justice Department a huge boost in cybercrime detection, neither of these options seems plausible. The former runs counter to the administration’s recent endorsement of net neutrality, while the latter may create a debate reminiscent of the controversy surrounding warrantless wiretapping and draw unpalatable comparisons to Orwell’s Big Brother.

More likely the warning that the administration will more rigorously pursue IP crimes is probably more rhetorical than practical. The warning may, in itself, serve to deter some of the more naïve cyber criminals and perhaps score political points among the entertainment industry. Effective deterrence is predicated on consistent enforcement; without the ability to detect the crimes (and thereby enforce the law), the warning may be little more than a paper tiger.

While domestic peer-to-peer file-sharing may be the hot-button domestic issue, it should not be the sole or even primary purpose behind the Task Force. The internet transcends national borders, making IP crime possible on an international scale. Many of the most prolific IP criminals work outside of the jurisdictional reach of American law. 30 pirated songs from Bit Torrent is a trifle compared to the deluge of pirated DVDs, CDs, knock-off devices, and pseudo-brand name clothing on the international black market. Extensive, international, commercialized infringement poses a much greater threat to the RIAA and MPAA profit margins. Moreover, profits from these sales may help finance terrorist and other international criminal organizations. A policy devoted towards working together with the international community, encouraging broad, consistent, enforcement efforts, and focusing on major, international IP crime could be a significant step forward in controlling cybercrime. Instead of attempting to control internet traffic and pursuing criminal sanctions against minor offenders, the DoJ should focus on eradicating the open markets for exchanging pirated items.

The issues facing the new Task Force on Intellectual Property have tortured the technological and creative vanguard for the past couple decades. The general impetus behind the Task Force is that our current system isn’t working. Rising cybercrime with plummeting CD and DVD sales has left the RIAA and MPAA desperate. While the DoJ currently lacks the necessary tools to effectively deter most cybercrime, a comprehensive policy on an international scale can at least help prevent the most egregious crimes. The ultimate efficacy of the new Task Force and of the Obama administration’s IP policy will be determined by how the Task Force dedicates its resources.