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Small Impact on Practice Predicted from White House IP Recommendations

By Zack Needles

When the White House's intellectual-property enforcement coordinator, Victoria Espinel, submitted a wish list to Congress in March recommending 20 changes to federal intellectual property law largely aimed at ramping up criminal punishment for IP infringement, IP lawyers said the white paper recommendations would likely have only a tenuous effect, if any, on civil IP litigation or patent prosecution.

Among the most widely publicized of the Obama administration's proposed legislative changes was the recommendation that Congress make copyright infringement via streaming media and other similar technology a felony offense under “appropriate circumstances.” Benjamin E. Leace, a shareholder at IP boutique Ratner Prestia in Valley Forge, PA, says it remains to be seen what “appropriate circumstances” would be if Congress were to enact the proposals into law. “You don't know if it applies to the [seven]-year-old who's downloading music,” he says. According to Espinel's report, there has been some question as to whether streaming media constitutes felony distribution of copyrighted works or merely performance of those works, which is not a felony offense. The administration is now asking Congress to put that debate to rest with a law stating the former.

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