creation of the nation: government control of the Internet

Do Obama's Proposed New Copyright Laws Go Too Far? (Part I)

Obama Administration IP Czar Victoria Espinel

David Makarewicz, Contributing Writer
Activist Post

On Tuesday, the White House's Intellectual Property Enforcement Coordinator, Victoria Espinel, provided Congress with a White Paper (available for download here), outlining a series of the Obama Administration's recommended legislative changes to combat online piracy and counterfeiting. Significantly, the recommendations include making it a felony offense to stream infringing content and giving Federal agencies wiretapping authority to obtain evidence of criminal copyright and trademark offenses.
The White Paper is the product of the IP Czar's review of "existing laws to ensure that they were effective and to identify deficiencies that could hinder enforcement." The review was conducted in conjunction with a group of federal agencies, including the Department of Homeland Security, the Department of Justice and the State Department.

These new proposals, as well as the Obama Administration's recent questionable domain seizures and previous controversial proposed laws, such as COICA, have raised questions about what Obama's legacy will end up being with regard to internet issues.

In the White Paper, Espinel attempts to camouflage some of the potentially controversial recommendations behind lofty goals like health risks, national security, counterfeit drugs and combating criminal gangs. However, many of the key measures, such as the new wiretapping powers and increased sentencing for repeat offenders, appear to be potentially applicable to any website operator and not limited to any one group or purpose.

Several points of the White Paper also still need to be investigated and clarified. For example, it requests that Congress change the law to clarify that "infringement by streaming, or by means of other similar new technology, is a felony." However, there is no attempt to clarify what activities fall into the category of "other similar new technology." Does this only refer to technology that has not been invented yet? Are search engines that list streaming sites the type of "other similar new technology" that will be subject to felony charges?

Around the web, the initial reaction to the White Paper is mixed. CNET hints that we should question the motives behind the Obama Administration's crackdown on copyright infringement by pointing out that "No less than 78 percent of political contributions from Hollywood went to Democrats in 2008, which is broadly consistent with the trend for the last two decades, according to OpenSecrets.org."

Techdirt is more direct with its criticism, pointing out:

The thing is, every time the government ratchets up IP laws in ways that don't match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.

On the other hand, Ars Technica applauds the fact that "The list largely avoids big controversies—Web censorship, 'three strikes' rules—in favor of a focus on health, safety, and serious criminal activity."

While I agree that these proposals could be worse, I believe the White Paper's potential to arm the United States government with another powerful new set of weapons aimed at websites demands more analysis than I can do in a single article. Therefore, this will be the introductory post of a multi-part analysis that I will roll out over the course of the next few days that will provide a more detailed review of the recommendations in the White Paper, as well as what these recommendations tell us about the Obama Administration's intellectual property philosophy and agenda.

Part II will review the Government's proposed new wiretap authority for copyright offenses.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs. Visit Dave at Sites and Blogs to keep up with breaking Internet news.

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