ArtsWatch: Strengthening U.S. Antipiracy Laws

IP enforcement coordinator proposes 20 legislative improvements
March 21, 2011 -- 10:27 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On March 15 Intellectual Property Enforcement Coordinator Victoria A. Espinel — in accordance with the 2010 Joint Strategic Plan On Intellectual Property Enforcement — issued the "Administration's White Paper On Intellectual Property Enforcement Legislative Recommendations." These recommendations are likely to be influential, but regardless of their implementation, their publication reflects the new footing and increased focus that IP enforcement has gained, the possible result of many years of advocacy. Looking forward, Espinel promised future recommendations if the need arises and expressed readiness to work with Congress on its ongoing exploration of how to crack down on foreign rogue websites. Several of the recommendations focus on counterfeit drugs as well as counterfeit products that enter the national security supply chain, but most of the others could have a direct impact on protecting rightholders from copyright infringement.

The administration's 20 recommendations include:

  • Tougher criminal sentencing guidelines for offenses "involving gangs/organized criminal enterprises" and "for defendants with a previous conviction for an intellectual property offense"
  • Changes to U.S. Customs and Border Protection practices to allow penalties for infringing exports generally and for imports discovered through audits of company records, as well as relief for importers who voluntarily disclose their acquisition of infringing products in a timely manner
  • A specific grant of wiretapping authority to intercept communications for criminal copyright and trademark offenses
  • Greater information-sharing with rightholders, including pre-seizure sharing of samples with suspect packaging, pre-seizure sharing of devices suspected of intended uses to circumvent technological content-protection measures, and post-seizure sharing of circumvention devices
  • Clarification that the streaming of infringing content should be treated as felonious distribution for enforcement purposes, despite the open legal uncertainty whether Internet streams should be categorized as distribution or as performances
  • Conforming to international standards by granting the owners of sound recordings a public performance right for terrestrial broadcasts

Reacting to IPEC's broadcast performance right recommendation, National Association of Broadcasters Executive VP Dennis Wharton said, "This is hardly a new policy position from the White House." One prior example of administration policy would be the Department of Commerce's support for the Performance Rights Act bill, which expired at the close of last year's Congress. The musicFIRST Coalition said, "We appreciate the Administration's support and look forward to the day when performers are fairly compensated." New legislation granting a broadcast performance right has yet to be introduced in this year's new Congress; however, concurrent resolutions opposing the right — H. Con. Res. 21 and S. Con. Res. 7 — were introduced on Feb. 28. The Recording Academy opposes these resolutions.

The House Judiciary Committee's Subcommittee on Intellectual Property, Competition and the Internet held a hearing on March 14 on protecting legitimate online commerce from rogue websites. Testimony was heard from Information Technology and Innovation Foundation Senior Analyst Daniel Castro, Paramount Pictures COO Frederick Huntsberry, Acting Register of Copyrights Maria A. Pallante, and Center for Democracy and Technology Senior Policy Counsel David Sohn. Rep. John Conyers Jr. (D-Mich.) expressed disappointment that the witnesses did not present detailed legislative recommendations. Additional hearings on the same topic are anticipated. In separate but related news, on March 15 Google announced new policies on March 15 to better prevent counterfeiters from taking advantage of the search giant's AdWords service.

On March 15 Republican efforts to prevent the Federal Communications Commission's Net neutrality rules from taking effect proved their ability to polarize political parties once again as H.J. Res. 37 passed the full House Energy & Commerce Committee along party lines. It is expected to pass the House and fail in the Senate. On March 14 two-time GRAMMY winner Sen. Al Franken (D-Minn.) spoke at the South by Southwest interactive conference and festival, informing attendees that he endorsed the FCC's Net neutrality rules in order to protect the status quo of an open Internet. Franken rebutted Republicans' arguments and said new regulations are needed to prevent corporations from unfairly dominating online distribution. The Republican perspective gives corporations plenty of credit for online innovation and believes that without a clear problem to fix, new regulations are more likely to change the status quo than protect it.

Pew Research Center's Project for Excellence in Journalism released its latest "The State Of The News Media" report on March 14, finding that news readership and advertising revenue on the Internet exceeded print news readership and ad revenue for the first time in 2010. The report suggests news media are losing control of their future and losing touch with their audience because the relationship to their readers is mediated by high-tech companies.


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