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Obama administration proposes stricter IP laws

April 7, 2011 by · Comments Off
Filed under: Internet 

by Justine A. di Giovanni

In a March, 2011 white paper, the Obama Administration proposed changes to existing law that would enact harsher penalties for copyright infringement, as well as for pharmaceutical drug counterfeiting.  Though the regulations increase the penalties for copyright infringement across the board, the most interesting and controversial aspects of the recommendations are those which apply to internet intellectual property law and the methods law enforcement may use to unearth intellectual property crimes.

The Administration recommends that the law be clarified to state that, “in appropriate circumstances,” unauthorized live streaming of intellectual property should be recognized as a felony.  In addition, the Administration suggests that law enforcement should be given the authority to request a wire tap in cases of suspected criminal trademark and copyright infringements.  These new regulations strongly tighten the existing noose of the law around the necks of intellectual property criminals.  The serious tone struck by the administration is emphasized by the wire tapping recommendation, which, before this point, was a procedure only deemed appropriate in the investigation of a specific set of serious crimes.  Many individuals are concerned that such regulations have a high potential for governmental abuse, but intellectual property right-holders see the recommendations as increasing protection for their valuable assets.

Other recommendations outlined in the paper relating to intellectual property law include:

  • increasing  the statutory maximum for “economic espionage” from 15 years in prison to at least 20.  Numerous other property offenses have higher statutory maximums: mail fraud is punishable by up to 20 years in prison, bank fraud 30, smuggling goods 20 and counterfeiting currency 20.  These are all tangible property crimes, however, not intellectual.  Upping the maximum to 20 will make “economic espionage” via intellectual property crime a more serious offense (base offense level 7 versus level 6).
    • increasing the U.S. Sentencing Guideline range to include harsher punishments for:
      • the theft of trade secrets, including those transferred or attempted to be transferred outside of the U.S.
      • trademark and copyright offenses when infringing products are knowingly sold for use in national defense, national security, critical infrastructure, or by law enforcement
      • intellectual property offenses committed by organized criminal enterprises/gangs or that risk death or serious bodily injury
      • those offenses involving counterfeit drugs (even when those offenses do not present risk of bodily harm)
      • repeat intellectual property offenders
  • authorizing the Department of Homeland Security (DHS) and its component U.S. Customs and Border Protection to share pre-seizure information about products and devices with right holders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and
  • creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations which will allow copyright owners to obtain overseas royalties that are currently denied to them.

You can find the PDF text of the full white paper here: http://www.whitehouse.gov/sites/default/files/ip_white_paper.pdf

Obama Administration’s use of State Secrets Procedures

October 22, 2009 by · Comments Off
Filed under: Business, Government Contracting 

The Obama Administration announced in September that they will institute a new policy on the State Secrets Procedures. The State Secrets Procedures grants the government permission to withdraw certain pieces of evidence from court cases if the government believes that it will reveal sensitive and classified information to the public.

Attorney General Eric Holder issued a memorandum to the Department of Justice about the new policies regarding the State Secrets Procedures, in hopes of attaining higher levels of accountability and transparency within the department. “This policy is an important step toward rebuilding the public’s trust in government’s use of this privilege while recognizing the imperative need to protect national security. It sets out clear procedures that will provide greater accountability and ensure that the state secrets privilege is invoked only when necessary and in the narrowest way possible.”  The need for greater accountability lends from past grievances from critics of the Bush Administration’s use of the State Secrets Procedures in numerous court cases throughout the administrations term.

The reaction to the new policy implementations by the Obama administration have been one of frustration. Many feel that the new procedures for the use are inefficient because they only add more bureaucratic measures without reforming the actual implementation of the measure. However, the Obama administration has claimed that it will only use the State Secrets Procedure in cases of “significant harm” to national security and the administration advocated that they would not use to procedure to cover government wrongdoings and abuses.

One of the critics’ biggest issues with the new policy on State Secret Procedures is the issue of maintaining the system of checks and balances established in the Constitution. Some people worry that the executive branch has invoked too much power over the court system by having the authority to omit certain items of evidence in cases. Critics believe that the courts should be entrusted with sensitive materials and more importantly they must have a check on the power of the executive branch. In order to address this issue, there is a need for legislative reform advocated by Congress.  So far, two pieces of legislation have been introduced in the House and Senate which will address the issues with the State Secrets Protection Act,