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The Administration recommends three legislative changes to give enforcement agencies the tools they need to combat infringement:
1. Clarify that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;
2. Authorize DHS, and its component U.S. Customs and Border Protection (CBP), to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and
3. Give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses.
The Administration recommends two legislative changes to allow DHS to share information about enforcement activities with rightholders:
1. Give DHS authority to notify rightholders that infringing goods have been excluded or seized pursuant to a U.S. International Trade Commission (ITC) order; and
2. Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure.
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Increase in the Offense Level for Recidivist Intellectual Property Offenders:
U.S. Sentencing Guideline Section 2B5.3 does not currently provide an enhancement to a defendant who committed a second or subsequent intellectual property offense, even though Congress has doubled the statutory maximum for recidivist intellectual property offenders. See, e.g., 18 U.S.C. §§ 2319(b)(2),(c)(2),(d)(3),(d)(4) (doubling the statutory maxima for recidivist copyright offenses); 18 U.S.C. § 2320(a)(1) (doubling the statutory maximum for recidivist trademark offenses). Some other Guideline provisions take recidivist conduct into account when calculating the offense level. See USSG § 2N2.1(b)(1) (four-level enhancement for a conviction under 21 U.S.C. § 331 if the defendant had a previous conviction under that section); see also USSG §§ 2D1.1(a)(1),(a)(3) (increased base offense level where, among other factors, the defendant committed the offense “after one or more prior convictions for a similar offense”); § 2L1.1(b)(3) (enhancements for smuggling, transporting, or harboring aliens when the defendant had previous immigration convictions); § 2L2.1(b)(4) (similar); § 2L2.2(b)(2) (similar), § 4B1.5 (increased offense level for repeat sex offenders).1 To appropriately increase the punishment for recidivist intellectual property offenders, we recommend that Congress direct the U.S. Sentencing Commission to consider imposing a two-level enhancement when a defendant has a previous intellectual property conviction (either under Federal or state law, whether the conviction was a misdemeanor or a felony, and regardless of the type of the previous intellectual property offense).
Recommendation: The Administration recommends that Congress direct the U.S. Sentencing Commission to consider providing a two-level enhancement for defendants with a previous conviction for an intellectual property offense.
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Ensure Felony Penalties for Infringement By Streaming and by Means of Other New Technology:
It is imperative that our laws account for changes in technology used by infringers. One recent technological change is the illegal streaming of content. Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work.2 Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws. To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.
Recommendation: The Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.
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Give DHS Authority to Share Information with Rightholders Pre-Seizure to Help Determine Whether Products Are Infringing or Devices Are Circumvention Devices:
Obtaining the assistance of rightholders pre-seizure to help determine whether goods are infringing is important. Rightholders know their products better than anyone else and, thus, obtaining their assistance allows DHS, particularly its component CBP, to more effectively identify and combat infringing products. There are concerns, however, that sharing unredacted samples of products and its packing with a rightholder pre-seizure would violate the Trade Secrets Act, 18 U.S.C. § 1905.
In the Joint Strategic Plan, the Administration committed to providing DHS with express authority to share such information pre-seizure. The Administration recommends legislation giving DHS that authority, with any appropriate safeguards for importers importing legitimate products.
Similarly, it is illegal to import or traffic in devices that can be used to circumvent technological measures that control access to copyrighted works. When DHS discovers the importation of a potential circumvention device, current law does not authorize DHS to share a sample with a rightholder to aid CBP in determining whether it is, in fact, a circumvention device. Allowing DHS to provide a sample would aid enforcement efforts. In the Joint Strategic Plan, the Administration committed to providing DHS with that authority and the Administration recommends legislation giving DHS that authority.
Recommendation: The Administration recommends that Congress authorize DHS to: (1) share informa-tion about, or unredacted samples of, products and/or their packaging with rightholders pre-seizure to aid in determining whether goods are infringing (subject to any bonding requirement and any appropriate safeguards for importers of legitimate products); and (2) share samples of potential circumvention devices pre-seizure to aid in determining whether they are, in fact, circumvention devices (subject to any bonding requirement).
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Give Wiretap Authority for Criminal Copyright and Trademark Offenses:
The Joint Strategic Plan committed Federal agencies to identify gaps in current intellectual property laws and ways that the U.S. Government could enhance enforcement. One such gap involves wiretapping authority (that is, authority to intercept wire, electronic, and/or oral communications). Title 18, United States Code, Section 2516 contains an extensive list of offenses for which the U.S. Government is authorized to seek wiretap authority from a court to obtain evidence of those offenses, including for economic espionage (18 U.S.C. § 1831) and theft of trade secrets (18 U.S.C. § 1832). See 18 U.S.C. § 2516(1)(a) (listing offenses under chapter 90). Omitted from this list are criminal copyright (17 U.S.C. § 506(a)(1), 18 U.S.C. § 2319) and criminal trademark offenses (18 U.S.C. § 2320). Wiretap authority for these intellectual property crimes, subject to the existing legal protections that apply to wiretaps for other types of crimes, would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises.
Recommendation: The Administration recommends that Congress amend 18 U.S.C. § 2516 to give law enforcement authority to seek a wiretap for criminal copyright and trademark offenses.
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Enhance Information Sharing About Enforcement Activity
Ordinarily, DHS is able to inform rightholders after infringing goods have been seized, which can help rightholders to enforce their own rights, including bringing a civil suit, if appropriate. The Administration has identified two areas in which DHS is not expressly authorized to share information post-seizure.
Give DHS Authority to Share Information with Rightholders About Seizures and Exclusions Pursuant to an ITC Order:
Under 19 U.S.C. § 1337, the ITC investigates allegations regarding unfair importation practices, including those involving intellectual property infringement. Once the ITC finds a violation and issues an order barring the importation of infringing goods, DHS, through its component CBP, is responsible for enforcing that order at the border. DHS currently lacks express authority to notify rightholders that goods have been excluded or seized under an ITC order. Giving rightholders that information will aid them in combating infringement. In the Joint Strategic Plan, the Administration committed to providing DHS with authority to share this information.
Recommendation: The Administration recommends that Congress give DHS authority to notify righthold-ers that infringing goods have been excluded or seized pursuant to an ITC order.
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Give DHS Express Authority to Share Information with Rightholders About Circumvention Devices:
After DHS has seized a circumvention device, current law does not expressly give DHS authority to share that information with rightholders or to provide a sample of the device. Allowing DHS to provide both, however, would assist rightholders in protecting their copyrighted work by, among other possibilities: (1) allowing them to alter the technological control to render the circumvention devices ineffective; (2) assisting them in investigating infringement of their intellectual property rights; and (3) assisting them in bringing civil actions to enforce their intellectual property rights. In the Joint Strategic Plan, the Administration committed to providing DHS and its components with authority to share such information
and samples, which is what DHS already does for trademark and copyright seizures.
Recommendation: The Administration recommends that Congress authorize DHS to inform rightholders when circumvention devices are seized and to provide samples of such devices (subject to any DHS bond-ing requirement).
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And the last one (not related to the others, but will have a large impact as now, if this goes through, the big US multinationls will start trying to take non-US citizens and firms to court, and the same for foreign firms with US citizens and US firms).
Public Performance Right for Sound Recordings
Ensure Copyright Owners Are Entitled to Compensation When Radio Stations Play Their Works:
Historically, in the U.S., there has been no right of public performance for sound recordings transmitted by over-the-air broadcast stations. The absence of such a right puts U.S. copyright owners at a disadvantage internationally. They are not permitted to collect overseas royalties because they are not granted rights in the U.S. The U.S. stands alone among industrialized nations in not recognizing a public performance right in sound recordings. The Administration recommends legislation giving sound recording owners that right.
Recommendation: The Administration recommends that Congress create a right of public performance for sound recordings transmitted by over-the-air broadcast stations.
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