IP Enforcement Coordinator Releases 2011 Report

March 30, 2012. The Executive Office of the President's (EOP) Office of the Intellectual Property Enforcement Coordinator (OIPEC) released a report [130 pages in PDF] titled "2011 U S Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property Enforcement".

Summary of Report. This report states that it describes the "coordinated efforts that the U S Government is undertaking to address the challenges of enforcing intellectual property of U S rightholders abroad, securing supply chains, pursuing sources of counterfeit and pirated goods, and meeting the challenges posed by emerging criminal trends such as the online sales of counterfeit pharmaceuticals, economic espionage, and targeted theft of trade secrets".

This report states that the OIPEC "will work to ensure that law enforcement efforts continue to increase".

In states that in 2012 the OIPEC "will encourage the expansion of voluntary best practices for online advertising to cut off revenue to websites distributing counterfeit and pirated goods".

In addition, the OIPEC "will continue to assess Federal laws and work with Congress to make certain that Federal agencies have the necessary enforcement tools they need to effectively combat intellectual property theft and we are focused on increasing international cooperation and enhancing capacity building through training, deployment of U S personnel overseas and diplomatic engagement with foreign nations".

This report states that the federal government "is leading by example by taking pro-active measures to ensure that the Federal government itself does not purchase and use counterfeit goods".

It states that the OIPEC has encouraged "the private sector (including ISPs, credit card companies, and online advertisers) to reach cooperative voluntary agreements to reduce infringement". (Parentheses in original.)

It also states that the OIPEC "continues to encourage improved transparency in intellectual property policy making".

History of OIPEC. The OIPEC is new. It was created in the 110th Congress by Section 301 of S 3325 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008". See, story titled "Congress Passes IPR Enforcement Bill" in TLJ Daily E-Mail Alert No. 1,836, October 1, 2008.

President Obama appointed Victoria Espinel (at left), the first and current IPEC, on September 25, 2009. See, story titled "Obama Names Intellectual Property Enforcement Coordinator" in TLJ Daily E-Mail Alert No. 1,990, September 27, 2009. The Senate confirmed her in December of 2009.

The OIPEC issued a document [65 pages in PDF] titled "Joint Strategic Plan on Intellectual Property Enforcement" on June 22, 2010. See, story titled "IPEC Releases Plan on Intellectual Property Enforcement" in TLJ Daily E-Mail Alert No. 2,099, June 22, 2010.

The OIPEC issued a document [20 pages in PDF] titled "Administration's White Paper on Intellectual Property Enforcement Legislative Recommendations" on March 15, 2011. See also, story titled "Espinel Offers 20 IP Legislative Recommendations" in TLJ Daily E-Mail Alert No. 2,212, March 30, 2011.

IP Legislation. The March 2011 OIPEC paper contained 20 legislative recommendations. However, little progress has been made on these recommendations.

The just released report states that two have been implemented. Actually, one of these two has only been partially implemented.

The legislative success came in Section 818 of HR 1540 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2012" or NDAA. This act is Public Law No. 112-81. It deals with detection and avoidance of counterfeit electronic parts by the Department of Defense (DOD).

First, it amends 18 U.S.C. § 2320 regarding "Trafficking in Counterfeit Goods or Services" to increase penalties for trafficking counterfeit goods to the military. This was one of the OIPEC's 20 recommendations.

Section 818 also provides that if Customs and Border Patrol (CBP) "suspects a product of being imported in violation of section 42 of the Lanham Act, and subject to any applicable bonding requirements, the Secretary of the Treasury may share information appearing on, and unredacted samples of, products and their packaging and labels, or photographs of such products, packaging, and labels, with the rightholders of the trademarks suspected of being copied or simulated for purposes of determining whether the products are prohibited from importation pursuant to such section." This partially implements another of the OIPEC's 20 recommendations.

The OIPEC recommendation (at pages 10-11) pertained to "rightholders", including under the Copyright Act and Digital Millennium Copyright Act (DMCA). This provision in Section 818 of the NDAA is limited to trademark rights holders, and contains a sunset provision.

There are several pending bills that would allow CBP to share information with rights holders under trademark, copyright and anticircumvention law. See, story titled "Rep. Poe and Rep. Chabot Introduce Bill to Allow Customs to Share Information with Rights Holders" in TLJ Daily E-Mail Alert No. 2,354, March 23, 2012.

PIPA/SOPA. Espinel undermined efforts by Sen. Patrick Leahy (D-VT) and others to pass legislation targeting web sites dedicated infringing activity. On January 14, 2012, the EOP released a statement, attributed to Espinel and others, that criticized the DNS blocking provisions of the SOPA and PROTECT IP Act.

See, story titled "Obama Administration Officials Criticize DNS Filtering Provisions of SOPA and PROTECT IP Act" in TLJ Daily E-Mail Alert No. 2,327, January 14, 2012.

Sen. Leahy's bill is S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", "PROTECT IP Act", or "PIPA". The related bill in the House is HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA".

The just released report states that "the Administration will not support legislation that reduces freedom of expression, increases cybersecurity risk (including authority to tamper with the DNS system), or undermines the dynamic, innovative global Internet". (Parentheses in original.)

However, it adds that "new legislative and non-legislative tools are needed to address offshore infringement" and "The Administration is interested in working with Congress". (See, page 34.)

Reaction. John Bergmayer of the Public Knowledge (PK) praised the just released report for confirming "the Administration's opposition to legislation".

Bergmayer also stated in the PK release that this report "shows that the content industries have a vast array of tools already at their disposal to enforce their rights, while the listing of enforcement cases also clearly shows the industries and the government have a world-wide reach when action is needed in any country in the world."

He added that "We remain extremely wary, however, of the reliance the report places on information regarding copyright industries as a source of information regarding infringement. Particularly in cases involving fair use, rights holders have not shown themselves to be reliable judges of infringement."

Sandra Aistars, head of the Copyright Alliance, stated in a release that this report "details many activities that are to be commended. But there is still work to be done. Many hardworking authors, songwriters, photographers and others have lost their ability to make a living due to digital theft. When stolen content is made available for free, those creators are unable to benefit economically from what they¹ve created. And the nation loses related jobs and taxes. It's essential our country properly value the contribution these innovators provide and do what we can to protect them."