Tuesday, December 14, 2010

What is happening to Intellectual Property law in this country?

The last couple of months have seen interesting developments in Intellectual Property (IP) law. The Combatting Online Infringement and Counterfeits Act (COICA) made it through Committee in the Senate. The Department of Homeland Security (DHS) is being used to enforce IP law by the Department of Justice (DOJ). Internet domains are taken down with no warning to disrupt the sale of counterfeit goods. According to the press release from the DOJ:

The coordinated federal law enforcement operation targeted online retailers of a diverse array of counterfeit goods, including sports equipment, shoes, handbags, athletic apparel and sunglasses as well as illegal copies of copyrighted DVD boxed sets, music and software.

Makes sense and seems reasonable. But they seized at least one search engine that never hosted torrents or knock-off items. That is disturbing. What would happen if DHS suddenly decided to seize Google? Bing? You can find torrents and knock-offs on those sites, too. Shutting down a search engine because you can find pirated movies is like shutting down a library because you can find the formula for TNT.

Historically IP crimes have been civil matters. But recently they have begun to be pressed as criminal offenses. Take a case reported by Wired.com, the case of Matthew Crippen. Crippen is charged with two counts of circumventing DRM on XBox video consoles by installing mod chips that allowed people to run homegrown software, RIPped DVD's, and other 'unofficial' content, although he could have been charged with many more counts. His lawyers are trying to use the recent decision granting jail-breaking the iPhone an exemption under fair use as part of their defense strategy. If they lose he's facing 3 years in jail, although it could have been as long as 10 years.

Why is the Department of Homeland security enforcing copyright law? Why are IP cases being tried as criminal cases? Why are we changing our IP suspects guilty until proven innocent? How can we fix these problems?