Behind the Deal: DOJ's Intellectual Property Task Force Report

As the music industry continues its legal challenges to unauthorized file sharing, the Department of Justice is shoring up its efforts to protect intellectual property.

As the music industry continues its legal challenges to unauthorized file sharing, the Department of Justice is shoring up its efforts to protect intellectual property.

These efforts are described in the Task Force on Intellectual Property Report, released Oct. 12 by U.S. Attorney General John Ashcroft.

Created last March, the Task Force examined intellectual property enforcement and explored ways to further protect copyrights, trademarks, patents and trade secrets, which the report calls "the new coin of the realm" in our "knowledge-driven, information-age economy."

Although the report covers every IP industry, from entertainment and technology to airplane design and fashion, Task Force chairman David Israelite tells ELW that music is a major focus for two reasons.

"First, the music industry has been hurt more than any other industry," he says, "and second, the industry has done more to help themselves, which is very important."

Among the recommendations in the 82-page report:

Overall: Certain principles must "drive and shape" the DOJ's efforts. IP owners and the government must work together, the federal government should punish those who "misuse innovative technologies" and the DOJ must enforce IP laws domestically and internationally.

Civil remedies: IP owners should aggressively enforce their rights under civil laws. To assist victims of IP theft, the Task Force prepared a general guide describing what to do and whom to contact, which Israelite says will be available soon.

For its part, the DOJ should provide enhanced training programs for prosecutors and investigators and set up a conference for victims and industry representatives to learn how to assist law enforcement.

To prevent court decisions that strike down IP laws and threaten the effectiveness of civil remedies, the DOJ must "identify [these threats] and take affirmative steps to correct them."

For example, the DOJ should "closely monitor" legal developments in private lawsuits and submit written briefs in cases where the constitutionality or the viability of important civil-enforcement tools are challenged.

Criminal enforcement: As the DOJ made enforcing IP laws a high priority in recent years, it developed a team of specially trained prosecutors focusing on IP crimes.

Sixty attorneys in the 13 Computer Hacking and Intellectual Property Units, called CHIP Units, are located in regions where there is a high concentration of IP cases, such as Los Angeles, New York and Miami. They prosecute crimes, work with local IP industries to prevent crime and train other prosecutors and investigators in regional issues.

The DOJ should create five more CHIP regional units (including one in Nashville), reinforce and expand existing units and designate CHIP coordinators in every prosecutor's office to be responsible for regional IP enforcement.

These CHIP coordinators would be an addition to the 190 or so Computer and Telecommunications Coordinators in the 94 U.S. attorneys' offices. CTCs prosecute crime, train other prosecutors and investigators and promote public awareness programs.

The DOJ should also examine the need to increase resources for the Computer Crime and Intellectual Property Section, called CCIPS. These Washington, D.C.-based specialists coordinate national and international efforts, prosecute IP cases, train prosecutors in the field and advise Congress when developing IP legislation.

The FBI, whose special agents in the Cyber Division and Intellectual Property Rights Unit are the primary IP investigators, should increase the number of special agents and other personnel.

The DOJ must also dismantle and prosecute more criminal organizations that violate IP laws and include these charges with any fraud, smuggling or other charges to emphasize the high-priority of IP enforcement.

Legislation: Legislators should consider certain principles for pending legislation.

Anyone who circumvents anti-copying technology should be prosecuted. Material and equipment used to make counterfeit products should be seized.

Since distributing copyrighted works without permission becomes a crime only when the total retail value of the original work, multiplied by the number of unauthorized copies, reaches a certain amount, the "minimal cost" of distributing over the Internet must be acknowledged. Even "passive" sharing of copyrighted work for unlawful duplication should be treated as a "distribution," with the criminal copyright statute prohibiting anyone from knowingly making available to the public a certain threshold number of infringing copies or exceeding a threshold value.

Copyright law should also recognize the premium value of a copyrighted work before it is released for sale, assign a presumed retail value to unreleased copies and permit this to be considered when determining a criminal's sentence.

Finally, the law should provide a remedy against those who intentionally induce infringement.

Future legislation should make the attempt to violate the criminal copyright statute a crime, even if the attempt is unsuccessful.

Copyright law should also change, so that importing or exporting unauthorized copyrighted works becomes unlawful.

Antitrust: Organizations seeking to establish industry standards to prevent IP theft are encouraged to use the DOJ's review procedure for guidance on antitrust enforcement. Technology owners should also continue to decide "independently" whether or not they wish to license their technology to others.

Theft prevention: In addition to encouraging use of the FBI's Anti-Piracy Seal, the DOJ should develop a program to educate students about the value of IP and the consequences of committing IP crimes.

International: Intellectual Property Law Enforcement Coordinators, prosecutors known as IPLECs, should be deployed to U.S. embassies in Hong Kong and Budapest to coordinate IP enforcement in Asia and Eastern Europe. The FBI should also assign legal attachés with IP expertise to assist them.

Israelite tells ELW that he continues to meet with labels, publishers, songwriters and artists on IP issues. His walk through record label headquarters with empty offices, once filled with employees before technology made it so easy to steal music, seemed to have a particularly profound impact on him.

As the industry walks the line between embracing promising technologies and fighting potentially harmful side effects, the DOJ's report is a reminder that all IP industries are in the fight together.

"As the nation's economy becomes increasingly dependent on intellectual property," the report says, "law enforcement must work harder to protect that which makes America prosperous."