November 29, 2020

DoJ To Divert Resources to P2P Enforcement

Last week the Department of Justice issued a report on intellectual property enforcement. Public discussion has been slow to develop, since the report seems to be encoded in some variant of the PDF format that stops many people from reading it. (I could read it fine on one of my computers, but ran into an error message saying the file was encrypted on the rest of my machines. Does anybody have a non-crippled version?)

The report makes a strong case for the harmfulness of intellectual property crimes, and then proceeds to suggest some steps to strengthen enforcement. I couldn’t help noticing, though, that the enforcement effort is not aimed at the most harmful crimes cited in the report.

The report leads with the story of a criminal who sold counterfeit medicines, which caused a patient to die because he was not taking the medicines he (and his doctors) thought he was. This is a serious crime. But what makes it serious is the criminal’s lying about the chemical composition of the medicines, not his lying about their brand name. This kind of counterfeiting is best treated as an attack on public safety rather than a violation of trademark law.

(This is not to say that counterfeiting of non-safety-critical products should be ignored, only that counterfeiting of safety-critical products can be much more serious.)

Similarly, the report argues that for-profit piracy, mostly of physical media, should be treated seriously. It claims that such piracy funds organized crime, and it hints (without citing evidence) that physical piracy might fund terrorism too. All of which argues for a crackdown on for-profit distribution of copied media.

But when it comes to action items, the report’s target seems to shift away from counterfeiting and for-profit piracy, and toward P2P file sharing. Why else, for example, would the report bother to endorse the Induce Act, which does not apply to counterfeiters or for-profit infringers but only to the makers of products, such as P2P software, that merely allow not-for-profit infringement?

It’s hard to believe, in today’s world, that putting P2P users in jail is the best use of our scarce national law-enforcement resources. Copyright owners can already bring down terrifying monetary judgments on P2P infringers. If we’re going to spend DoJ resources on attacking IP crime, let’s go after counterfeiters (especially of safety-critical products) and large-scale for-profit infringers. As Adam Shostack notes, to shift resources to enforcing less critical IP crimes, at a time when possible-terrorist wiretaps go unheard and violent fugitive cases go uninvestigated, is to lose track of our priorities.

Comments

  1. matt perkins says:

    I’ve only read the first third of the report, but I’m not suprised to hear that the glaring, frightening examples of the exposition are juxtoposed with a suggestion to focus on utterly different crimes.

    Many of the harrowing examples (counterfeit drugs/batteries/auto parts/medical equipment) and the prosecutions (baby formula, drugs, pesticides, etc.) are crimes of fraud and not simply infringement. It would have been kind of the authors to recognize and distinguish between non-fraudulent infringement and the more serious crimes.

    (I would even think that the medial text example (page 8) is not fraudulent, at least based on the scant information in the report, since any doctor relying on a web site for drug dosages has got to be aware that he’s taking his information from a third-party, non-authoritative source.)

  2. “But when it comes to action items, the report’s target seems to shift away from counterfeiting and for-profit piracy, and toward P2P file sharing.”

    I haven’t read the entire report, but I don’t get this impression. Section VIII (“What can the DoJ do to expand the fight against IP crime?”) contains 23 recommendations, only one of which directly relates to P2P technology. (And most clearly do not.)

    Similarly, in section VII (“How has the DoJ attacked the global threat of IP crime?”) 14 different past DoJ operations are described, only one of which was P2P-related. (There is no suggestion that this should change in the future.)

    Section IX (“What principles should apply to future IP legislation?”) argues for the DCMA and the Induce Act, but only in the midst of many suggestions relating to “physical” copyright violations. I also don’t think it surprising that future IP *legislation* (i.e. not enforcement effort) will have a much greater focus on digital IP issues than in the past.

  3. Anonymous says:

    You often make the assertion that Republicans are better on this issues (less willing to take our rights away than Democrats). Yet on this very issue it is a Republican DoJ, in a Republican administration (the same administration that dropped the ball on the Microsoft Antitrust case) that is diverting their attention to this issue. Aside from Fritz Hollings I don’t see many Democrats on the wrong side of these issues.

  4. There are many black-hat Democrats besides Hollings. But the truth is that both US parties are the same ideologically-speaking. Both are pro-business, and so both are willing to acquiesce to men in suits demanding special favours for their sectors while at the same time preaching the virtue of free markets. The Democrats may be slightly more willing to tinker round the edges of the market system to help the less well-off, but they’re not inherently more prone than Republicans to support government intervention on behalf of the rich: that’s mostly Republican territory.

  5. Bruce Heerssen says:

    I have successfully ported the document to HTML format using KWord from the KDE project. It turned out very well. I have also produced what I hope is a non-crippled PDF by useing the pdf2ps and ps2pdf tools from XPDF.

    Yeah, FOSS (Free and Open Source Software) rocks.

    If you’d like a copy of either, please drop me a line. I’d be happy to send it to you. The files are a little large, so I’m sparing your email unless you say otherwise.