IPEC Releases Joint Strategic Plan on Intellectual Property Enforcement

Last week (on June 22), the Intellectual Property Enforcement Coordinator (IPEC) Victoria Espinel published the Joint Strategic Plan mandated by the PRO-IP Act. (For prior posts about the IPEC’s duties and responsibilities, see my June 1, 2010 post.) A full copy of the Plan can be found on the IPEC’s site and remarks about the program can be found on the White House’s Blog, (IPEC’s announcement of the Plan’s availability and some general remarks about the program).
This report outlines 33 “enforcement strategy action items”, divided into six categories: 1) leading by example; 2) increasing transparency; 3) ensuring efficiency and coordination; 4) enforcing our rights internationally; 5) securing our supply chain; and 6) building a data-driven government. Listed below are just some of the highlights – not a full list or explanation of each of the 33 action items.

  • A “government-wide working group” will be established to determine how best to ensure that the U.S. government does not obtain counterfeit parts in connection with its government contracts. This group would be required to submit a formal report within 180 days after its first meeting that details its findings and issues remaining for determination. (Page 7)
  • The U.S. government “will review its practices and policies” to ensure that it is not purchasing pirated software so that it can “set an example to our trading partners.” In this regard, the IPEC will propose legislative amendments necessary to implement a 1998 Executive Order. (Page 7)
  • Enhance communications with rightsholders and victims of IP infringement/crimes/piracy, to inform them about how to report IP crime, which types of cases are generally accepted by the U.S. government for prosecution, and the types of information victims could provide to support an enforcement action. (Page 8-9)
  • The U.S. Trade Representative is currently responsible – through its Special 301 process – for providing a Notorious Markets list (defined in the Plan as “a combination of examples of Internet and physical markets that have been the subject of enforcement action or that may merit further investigation for possible intellectual property infringements.”) (Page 9)
  • The U.S. government will create a database (or combination of databases that function as a unitary whole) that contains information about IP cases, case-specific information about pending investigations. The database “need not” include sensitive IP information such as national security information, trade secrets or grand jury investigation that cannot be disclosed under the Federal Rules of Criminal Procedure (Rule 6(e)). (Page 11)
  • The U.S. Customs and Border Protection will provide samples of allegedly infringing products to rightsholders for testing, provided that a bond is posted for each sample “to cover the potential loss or damage to the sample if the products are ultimately found to be non-infringing.” In this Plan, the IPEC described a streamlined bond option that allows the posting of a single bond to cover multiple samples released by CBP. (Page 17).
  • The U.S. government broadly encourages cooperation in the private sector to police infringing activity and to enforce existing IP rights: “the Administration encourages actions by the private sector to effectively address repeated acts of infringement, while preserving the norms of legitimate competition, free speech, fair process and the privacy of users.” (Page 17)
  • Google, Yahoo and Bing were lauded specifically for their development of “voluntary protocols to prevent the sale of sponsored results for unlawful businesses selling counterfeit medications on-line.” Their list of so-called “unlawful businesses” is based, in part, on verification by the National Association of Boards of Pharmacy’s Verified Internet Pharmacy Practice Sites and/or certifications from the original manufacturers of legitimate and FDA-approved pharmaceuticals. (Page 18) – See also Pharmaceutical Security Institute (PSI) and the Partnership for Safe Medicines. (Page 53).
  • The IPEC will initiate and coordinate a process of reviewing existing IP laws and their penalties (whether civil or criminal) to determine whether their reach is far enough, or whether there are modifications required to “enhance enforcement efforts.” (Page 19).

The Plan also summarizes various Federal Agencies’ enforcement activities in 2010 (to date) (Page 35).
Please comment below about other portions of the Plan if there are other points that should not be overlooked here.

Summary of IPEC’s Responsibilities

On October 13, 2008, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (“PRO-IP Act of 2008”). Pub. L. No. 110-403, 122 Stat. 4256 (2008). While the Act principally targets copyright issues, it also increases civil penalties for trademark counterfeiting (including for direct as well as for certain types of contributory infringement), enhances criminal penalties for trafficking in counterfeit goods bearing others’ trademarks and provides additional anti-piracy tools at the executive branch level in the form of an Intellectual Property Enforcement Coordinator (IPEC). It took a full year before someone was appointed to fill the IPEC role (see my October 2009 post describing Ms. Victoria Espinel, the current IPEC).

Since Ms. Espinel’s appointment, however, a number of projects have been assigned to her office. The purpose of this blog post is to summarize briefly those projects and provide links for more information. I also commend to you an article published on CNET shortly after the PRO-IP Act was enacted by Congress (but before the President signed it into law) that provides a basic outline of the position.

As Assigned by the PRO-IP Act

From the outset, the IPEC was tasked with coordinating the development and implementation of a Joint Strategic Plan against counterfeiting and infringement and to facilitate the issuance of policy guidance to other U.S. government agencies and departments relating to domestic and international intellectual property enforcement programs. Pub. L. No. 110-403 § 301. This position appears to be directed to correct a flaw in the “lack of permanent and effective leadership in coordinating” IP enforcement efforts. Prioritizing Resources and Organization for Intellectual Property Act of 2008, House Report 110-617, May 5, 2008 (“House Report”), at 26. As enacted, however, this position does not have any independent prosecutorial or other law enforcement authority, and appears to only have “advisory” duties. Pub. L. No. 110-403
§ 301(b)(2).

Among the IPEC’s initial advisory responsibilities were the following:

1) chair an “interagency intellectual property enforcement advisory committee”;

2) coordinate the Joint Strategic Plan (the “Plan”);

3) assist, when requested, in the implementation of the Plan;

4) facilitate the issuance of policy guidance on “basic issues of policy and interpretation, to the extent necessary to assure the coordination of intellectual property enforcement policy and consistency with other law;”

5) report to the President and to Congress about IP enforcement programs;

6) report to Congress about the implementation of the Plan; and

7) “carry out such other functions as the President may direct.” Id. § 301(b)(1).

So, where is this Joint Strategic Plan? On February 23, 2010, the IPEC requested public comment about the proposed content of a Joint Strategic Plan. Coordination and Strategic Planning of the Federal Effort Against Intellectual Property Infringement: Request of the Intellectual Property Enforcement Coordinator for Public Comments Regarding the Joint Strategic Plan, 75 Fed. Reg. 8137 (Feb. 23, 2010). Comments were due by March 24, 2010, and can be found on the IPEC’s web site.

As Assigned by the Trademark Technical and Conforming Amendment Act of 2010

On January 26, 2010, Representatives John Conyers, Jr. (MI) and Lamar Smith (TX) co-sponsored a bill (H.R. 4515) intended to “make certain technical and conforming amendments to the Lanham Act.” Similarly, on January 28, 2010, Senators Patrick Leahy (VT) and Jeff Sessions (AL) co-sponsored an identical bill in the Senate (S. 2968) which was passed without amendment by Unanimous Consent the same day. These bills have now been enacted. See Pub. L. No. 111-146 (enacted Mar. 17, 2010).

In addition, the Act requires the IPEC to conduct a one-year study and prepare a substantive report on two subjects: 1) “the extent to which small businesses may be harmed by litigation tactics by corporations attempting to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner;” and 2) “the best use of Federal Government services to protect trademarks and prevent counterfeiting.” The IPEC’s report would be due within one year after the enactment of the Bill, or no later than March 17, 2011.

For More Information

The Official Site for the IPEC’s Office is http://www.whitehouse.gov/omb/intellectualproperty/. Should you wish to contact the IPEC, the official e-mail address is mailto:intellectualproperty@omb.eop.gov?subject=Contact%20IPEC.

Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required

The Pennsylvania General Assembly recently amended its sentencing requirements to be imposed upon convicted identity thieves. On September 18, 2009, House Bill 222 was approved by Governor Rendell and became effective on November 17, 2009.

House Bill 222 amended the PA Crimes Code to mandate restitution by a convicted identity thief to “for all reasonable expenses incurred by the victim or on the victim’s behalf” to investigate the theft, bring civil and/or criminal actions in response, or to correct the victim’s credit record or negative credit reports. 18 Pa. Cons. Stat. Ann. § 1107.1(a). These expenses include: 1) attorneys’ and accountant’s fees for professional services; 2) fees or costs imposed by the credit bureaus to correct the credit reports, to undertake private investigations, or to contest “unwarranted debt collections;” and 3) court costs and filing fees. Id. § 1107.1(b).

This restitution sentence would be imposed in addition to any other restitution sentence or other order. See id. § 1107.1(a).

(Note that you can find the statutory sections cited above through West’s Unofficial Purdon’s Pennsylvania Statutes – I tried linking each separate section, but the individual links would not work. You will have to navigate through West’s table of contents and expand the listings under Title 18 to find the relevant sections discussed here.)

Prior Version of Restitution Requirement

The prior version of this restitution requirement had been codified in 42 Pa. Cons. Stat. Ann. § 9720.1 and took effect July 21, 2000. Section 9720.1 has been repealed, now that the provisions have been moved to the Crimes Code.

Amendments Recently Enacted

Section 1107.1 provides several important amendments beyond the provisions previously codified in 42 Pa. Cons. Stat. Ann. § 9720.1. Specifically, the current provision permits an identity theft victim to recover professional fees charged by an accountant as well as any costs that they incurred in connection with disputing debt collections that were undertaken without justification.

Identity Theft in PA (Generally)

Identity theft is considered an “offense against property” in Pennsylvania. A person commits identity theft if “he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.” 18 Pa. Cons. Stat. Ann. § 4120(a).

Identifying information includes “documents [separately defined], photographic, pictorial or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver’s license number, nondriver governmental identification number, telephone number, checking account number, savings account number, student identification number, employee or payroll number or electronic signature.” Id. § 4120(f).

The term “document” is defined to include broadly “any writing,” with certain non-exclusive examples provided: “birth certificate, Social Security card, driver’s license, nondriver government-issued identification card, baptismal certificate, access device card, employee identification card, school identification card or other identifying information recorded by any other method, including, but not limited to, information stored on any computer, computer disc, computer printout, computer system, or part thereof, or by any other mechanical or electronic means.” Id.

The determination of the severity of the offense will vary, depending on the total dollar value involved, the number of times the offender has committed this offense in the past and the age of the victim. Specifically, the offense is deemed to be a misdemeanor of the first degree if the total value involved is less than $2,000. Id. § 4120(c)(1)(i). The offense will be upgraded to a felony (of the third degree) when the amount exceeds $2,000 or when the offense is committed “in furtherance of a criminal conspiracy.” Id. § 4120(c)(1)(ii) and (iii). The degree is further upgraded for recidivists – for third or subsequent offenses, the offense is deemed to be a felony of the second degree. Id. § 4120(c)(1)(iv).

Finally, if the offense is committed against a person “60 years of age or older” or against a person who is “care-dependent” under 18 Pa. Cons. Stat. Ann. § 2713, the severity of the offense will be upgraded a degree. Id. § 4120(c)(2).

As a result, the severity of the offense can range from misdemeanor of the first degree through a felony in the first degree. 204 Pa. Code § 303.15. Under Pennsylvania law, the actual penalties imposed for these offenses will be established by reference to the Sentencing Code (42 Pa. Cons. Stat. Ann. § 9701 et seq.) and Sentencing Guidelines (204 Pa. Code §§ 303.1 – 303.18), but can include imprisonment of varying terms in addition to the restitution required by 18 Pa. Cons. Stat. Ann. § 1107.1 and 42 Pa. Cons. Stat. Ann. § 9721(c).

Resources to Combat Identity Theft

If you need further information about identity theft, there are numerous resources you can use. For instance:

Government & Consumer Advocate Links
* Better Business Bureau’s Information for Consumers about Identity Theft
* Credit Reporting Companies: Equifax, Experian, and Transunion.
* Federal Trade Commission’s Identity Theft Site
* Pennsylvania Attorney General Tom Corbett’s Identity Theft Toolkit
* Pennsylvania State Police – Identity Theft Prevention Guidelines (PDF document)
* US Postal Service – Report ID Theft by Mail

Commercial Providers or Evaluation Tools
* IDTheft.com – has some information about police reports and dealing with governmental agencies to start correcting their records.
* Comparison of the “Top 5” Identity Theft Protection Companies on the market
* Identity Theft Labs – also provides a comparison of the most popular ID Theft Protection sites
* Identity Theft Protection and Survival – offers books and other educational materials for sale

This is a non-exhaustive list, but should get you started. In addition to these resources, you may also want to consider checking resources offered by your bank, credit union or credit card companies; many of them offer tools to assist you in avoiding or recovering from identity theft.

(Please note that I have not thoroughly researched companies providing ID theft protection services – so what appears above are suggestions only of some of the third-parties that provide these services. Their listing here should not be taken to be an endorsement or any other support for the products or services that they offer.)