June 21, 2006 | By Fred von Lohmann

DoJ Reports on Criminal IP Enforcement

This week the Department of Justice issued a 100-page "progress report," [3mb PDF] measuring its activities in the intellectual property arena (copyright, trademark, patents, trade secrets) against the October 2004 Report [also a big PDF] issued by the DoJ's "IP Task Force" (this task force was headed by David Israelite, who then left DoJ to become head of the National Music Publishers Association).

This "progress report" is fascinating reading, describing the DoJ's current enforcement priorities in the intellectual property realm. Here are a few tidbits that caught my eye:

  • The feds have been staffing up on cybercrime generally, with more than 230 attorneys working either as CHIP Coordinators or directly assigned to CHIP Units. The number of CHIP Units around the country, moreover, has nearly doubled from 13 to 25 since 2004. (CHIP Units are specially-trained federal cybercrime prosecutors concentrated in a particular region.) CCIPS has also grown, with 35 attorneys, 14 of which are exclusively devoted to prosecuting IP crimes. (Based in Washington DC, CCIPS is DoJ's "brain trust" on cybercrime.)
  • Criminal prosecutions of IP offenses are way up, with 350 charged defendants in FY2005, as compared with 177 in FY2004.
  • The report mentions several high-profile copyright enforcement actions, including the colorfully named Operations Gridlock, Copycat, and Western Pirates. All of the featured copyright prosecutions involve commercial piracy or large-scale "release groups." (Notably overlooked was the federal indictment in Nashville of two Ryan Adams fans for uploading a few tracks from pre-release promotional CDs.)
  • The Attorney General has issued a guidance to all federal prosecutors instructing that "whenever possible, United States Attorneys should charge and convict offenders of readily provable violations of...core intellectual property statutes," including the DMCA, the anti-bootlegging statute (declared unconstitutional by a court in New York), satellite signal piracy, and the new law banning camcording in theaters.
  • Since 2004, the Civil Division has filed 13 amicus briefs on IP issues in the Supreme Court (the report identifies 9 of these cases, including the one in MGM v. Grokster siding with the entertainment industry) and "more than a dozen" amicus briefs in lower courts (the report identifies 5 of these cases, including 3 where the briefs opposed positions taken by EFF amicus briefs). The report does not mention how many amicus briefs were filed in previous years, but this appears to represent a newfound activism on the part of DoJ in attempting to shape IP jurisprudence.
  • The report details a wide variety of new international initiatives, including pressuring countries in treaty negotiations, developing an international "24/7 network" of law enforcement contacts for computer crime cases, and adding DoJ "attaches" in Asia and Eastern Europe.
  • The report endorses the proposed Intellectual Property Protection Act, which would dramatically expand the scope of criminal copyright infringement, adding attempt liability, conspiracy liability, and asset forfeiture. As we've discussed previously, these proposals are an outrage, effectively allowing the feds to put people in jail without having to prove that any actual copyright infringement ever took place.

All of this suggests that we can expect to see a marked increase in criminal IP cases being brought by the DoJ, as well as increasing DoJ activism as amicus in civil IP cases.


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