The Needles

The Needles: Crash Course in IP Enforcement Strategy


So how about that new Strategic Plan on Intellectual Property Enforcement, eh? Surely you’ve heard of it. It is, after all, the U.S. government’s central platform in the fight against copyright infringement, which is to say piracy, which is to say illegally copying games – and other things, of course. The government’s new (and, it bears mentioning, first) IP enforcement strategy was released on June 22, accompanied by a very clear message that stealin’ is stealin’, and you ain’t getting away with it no more.

It’s not an exact quote, but it’s closer than you might think. “We used to have a problem in this town saying this, but piracy is theft,” U.S. Vice President Joe Biden said at a Washington D.C. press conference announcing the strategy. “Clean and simple. It’s smash and grab. It ain’t no different than smashing a window at Tiffany’s and grabbing [merchandise].”

It is different, obviously, but I have no desire to start splitting hairs with ol’ Joe and besides, what matters here isn’t what he said but the fact that he said it at all. Debating whether or not copyright infringement is “theft, plain and simple” is like arguing over the best brand of raincoat while the hurricane bears down on you. It doesn’t matter. The U.S. has decided to put intellectual property crime in its sights and details be damned, that’s a game-changer.

“We’re going to aggressively protect our intellectual property,” U.S. President Barack Obama said during an address in March, putting it slightly more eloquently than the Veep. “Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity and it will only become more so in this century.”

The good news, at least from the perspective of those who get off on sticking it to The Man by indulging their overblown sense of entitlement, is that games clearly aren’t a priority in the new strategy. Despite the phenomenal growth of the industry, games only rated three mentions in the entire document, two of which lumped them in with other forms of entertainment media and hardware. In the eyes of the government, movies and music are still the big dogs.

The bad news is that if you eyeball it from far enough away, it all starts to look the same; IP is IP and although much of the strategy is focused on counterfeit goods ranging from circuit boards and other electronic components to cigarettes, watches, perfumes and especially pharmaceuticals, if you’re hoping that somebody in power might be thinking about easing up on, say, modchip restrictions, you’re in for a disappointment.

In fact, modchips are mentioned fairly early as part of the plan to “increase information sharing with rightsholders.” The idea is that since it’s becoming ever harder for law enforcement to tell counterfeits from the real deal, the government will start sharing information, including samples of “circumvention devices” (that’s modchips) with rightsholders (that’s Nintendo) to allow them to “assist in determining whether such devices violate an import prohibition.” The government also plans to share “enforcement information” on those same devices in order to help rightsholders conduct their own investigations, presumably to be used in civil suits.

The strategy also lays out the need to “combat foreign-based and foreign-controlled websites that infringe American intellectual property rights.” Currently, the enforcement of U.S. IP rights in other countries is “complicated” because of that whole annoying business of sovereign nations insisting on applying their own laws within their own borders. So what’s the plan? It’s kind of vague, actually. Bombing them back to the stone age isn’t an option anymore so instead, the IP Enforcement Strategy calls for a mix of “vigorous” law enforcement and cooperation with foreign enforcement agencies, diplomacy, economic tools, interaction with the private sector and “trade policy tools.”


Trade policy tools are of particular interest to Canadians, because, at the head of that charge, is the infamous Special 301 Report and action plans. You may recall that we’ve mentioned the Special 301 in the past because of the way it throws Canada, a nation with a very healthy videogame industry (not to mention movie and music industries) and a history of consistent, internationally-respected law enforcement, under the bus with countries like Algeria, Mexico, China, Pakistan and Venezuela, where “legal deficiencies” and lax law enforcement have resulted in unregulated havens for piracy. It doesn’t make a lot of sense but don’t hold your breath waiting for that to change, either. The strategy specifically calls for measures “to increase the effectiveness of, and strengthen the implementation of, Special 301 action plans.”

The new IP enforcement strategy was built with “significant input from the public,” represented by more than 1600 responses to a Federal Register Notice seeking input on the matter as well as from companies impacted by IP infringement, trade associations and labor organizations, and groups “interested in intellectual property enforcement” from both sides of the fence: those who want strong IP enforcement and those seeking a liberal range of exceptions to IP laws. The strategy document also acknowledges that while “the most frequently cited” numbers were based on 2007 estimates by the Institute for Public Policy that piracy cost the U.S. economy $58 billion in total economic output and over 373,000 jobs, other submissions questioned those figures, claiming they were based on the “unsubstantiated assumptions” that each pirated good represented a lost sale and that jobs lost in one industry weren’t replaced by jobs in another.

Victoria Espinel, the newly-anointed IP Enforcement Coordinator, will continue to seek public input, according to the document, to measure the success of the strategy as it’s implemented and to learn about new concerns and problems as they come up. It’s interesting to note that one of the “performance measures” of the strategy is the “public perception of intellectual property rights.” In other words, the government recognizes that a big part of the battle against copyright infringement has to be fought in the hearts and minds of the average citizen, especially “youth,” who sees nothing wrong with downloading a movie or some music, or a game, from the internet. It’s a very real problem. How can people be convinced to stop engaging in a particular behavior if they see nothing wrong with that behavior in the first place?

Ultimately, however, the new IP Enforcement Strategy is very much about, well, enforcement. It’s all stick and no carrot; the document notes that in April, the Department of Justice added 20 FBI agents dedicated to investigating IP crimes to field offices around the country and 15 new Assistant U.S. Attorneys “devoted to prosecution of high-tech crime, including computer crime and intellectual property offenses.” New inter-agency and international coordination and workshops to combat IP crime are also in the works. Videogames may not rate the same level of notice as movies and music in the minds of U.S. politicians, but the increased focus on IP infringement will inevitably have an impact on the business of game piracy. The world isn’t going to change overnight but there’s little doubt that if the U.S. government follows through on this strategy, it will change.

Andy Chalk really wishes he could yammer about his own country once in awhile. To learn more, read the U.S. Government’s new Intellectual Property Enforcement Plan in full at (PDF format)

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