Copyright The Obama Administration is looking to swear in copyright owners to help it catch DMCA violations at U.S. borders.
In a new legislative proposals issued Tuesday, the Administration is asking Congress to let the Department of Homeland Security share samples of possible circumvention devices entering the country with rights owners prior to those devices being seized by DHS’ Customs and Border Patrol agents, to help determine whether they are, in fact, circumvention devices. It also wants Congress to allow DHS to provide information to copyright owners about devices seized by CBP without prior involvement by the rights holders.
Under the DMCA, it is generally illegal to import or traffic in devices designed primarily for circumventing encryption on copyrighted works. As currently applied, however, CBP is not permitted to share information about seizures or potential seizures of such devices with outside parties out of concern that doing so could violate the rights of importers under the U.S. Trade Secrets Act. The White House wants Congress formally to waive those concerns, while providing “appropriate safeguards for importers.”
Major copyright groups like the MPAA, of course, maintain their own staffs of investigators, many of them drawn from law enforcement, who conduct non-criminal investigations of infringement and often share the information they develop with federal and local authorities if they believe criminal enforcement is warranted. What the White House is proposing would, in effect, deputize those private investigators so information could be shared both ways and MPAA investigators could assist federal agents in criminal enforcement actions.
The proposal was included in a white paper issued by the office of the Intellectual Property Enforcement Coordinator, covering a range of legislative proposals for stepped up enforcement of trademarks, copyrights and patents. Other highlights on the copyright front include a proposal to define streaming of infringing material as a felony for purposes of criminal copyright law.
Currently, illegal downloading can rise to the level of a felony because it directly implicates the reproduction right in copyright law. Views differ, however, on whether illegal streaming violates the reproduction right, which is a felony, or the public performance right, which is not. The IPEC proposal asks Congress to define streaming of infringing content per se as a felony without directly addressing the rights question (any such recommendation would likely have to come from the Justice Department rather than IPEC, since it goes to the basic structure of copyright law rather than merely its enforcement). The proposal is aimed at making it easier for authorities to bring criminal actions, including domain seizures, against web sites that specialize in streaming copyrighted content.
The enforcement proposals are likely just the opening act from the Obama Administration regarding IP issues, however. As I’ve noted in previous posts, the Administration has been working for months on possible revisions to the DMCA that could touch on more controversial issues such as the scope of the service provider safe harbors. More on that in an upcoming post.