Justice Department: The force is with you

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With the confirmation of Michael Mukasey as U.S. attorney general, the Task Force on Intellectual Property has now changed leadership three times since it was first formed in 2004 to beef up enforcement. With each changeover comes the questions of whether the task force will be a top priority for the Justice Department -- and where the music industry fits into its agenda. During an exclusive interview, Kevin O'Connor, the task force chairman and the president's nominee for associate attorney general, assures the industry that the force will be with us.

"This task force has been institutionalized," O'Connor says. "Giving credit to David [Israelite] and others who got it up and running, the task force was built to withstand any changes in senior leadership, which is a good thing. That's one of the ways that you ensure that these efforts continue beyond this administration."

Part of the task force's mission is to propose legislation to help its efforts. While the DOJ in May presented to Congress a legislative package to help criminally prosecute and deter intellectual property "thieves," earlier this month Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, also introduced a bill that would have the DOJ add civil anti-piracy cases to its workload.

This seems like good news for the music industry. The RIAA alone has spent more than $32 million in legal fees in 2005-06, according to public records. Most was spent fighting piracy, industry sources say. And this amount doesn't include legal fees paid by individual labels or music publishers.

But several government sources have said recently that requiring the DOJ to handle civil cases may not be such a great idea; there isn't sufficient staff to handle the cases.

O'Connor says the DOJ hasn't yet had the opportunity to review the Leahy/Cornyn bill, but it has either formally or informally provided its views on other pending enforcement bills.

"The bottom line is we're generally very supportive of the effort to give prosecutors and others the tools to combat intellectual property piracy, but there are some concerns in the specifics -- whether they're practical or will have the desired effect," O'Connor says. "So we're working closely with our colleagues on the Hill -- Democrats and Republicans -- to come up with an end product that everyone's happy with."

O'Connor says the DOJ is generally thought to make its greatest impact by focusing on criminal prosecutions -- private lawyers can enforce civil remedies, while only the DOJ can legally prosecute criminals.

"Our civil division, who presumably would do these cases, are obviously occupied with a lot of other lawsuits brought against the government as their core mission," O'Connor says. "To ask them on top of that to go out and bring civil claims on behalf of the industry would be difficult, absent the infusion of new bodies."

The DOJ's focus on the criminal front is showing some important results.

For example, prosecutions continue against defendants in the two largest international enforcement actions undertaken against online piracy -- Operations FastLink and SiteDown. In 2004-05, officers busted "warez" groups (organized groups that illegally share copyrighted works, often prereleases); so far, the U.S.-led operations in 15 countries have resulted in more than 100 felony convictions.

"The difficulty with [online piracy] cases is that, oftentimes, the defendants aren't motivated by profit," O'Connor says. "Sometimes the courts look at us like, 'Why are you bringing us these cases? They're a bunch of college dropouts sitting behind their computers acting like Robin Hood, robbing from the rich to feed the poor."

Nevertheless, O'Connor says prosecutors make it very clear at sentencing that they don't agree with such an assessment.

Meanwhile, earlier this month, the first DOJ Intellectual Property Law Enforcement Coordinator to work in Eastern Europe landed in Sofia, Bulgaria. And earlier this year, the first IPLEC was placed in Bangkok to help fight against piracy in Southeast Asia. The experienced IP prosecutors will be developing relationships with private industry and the governments, O'Connor says, to train local officers and coordinate investigations and operations against IP crime.

"We are very, very aware of [the music industry's] concerns," O'Connor says. "There's a real keen awareness of the economic benefit of being very aggressive on enforcing IP rights in the criminal arena, but there's also a realism that with the Internet and the international scope of this problem, we've got to pick and choose wisely where we put our resources and make sure we have the most significant impact."
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