DOJ unwilling to prosecute in private IP theft cases

Is the Justice Dept. unconcerned with everyday cases intellectual property theft, like the one profiled in the upcoming movie, Flash of Genius? No, it's just that there's not enough resources to go around, says a key DOJ official.

Bipartisan legislation introduced earlier this month before both houses of Congress would enable the President to appoint an "intellectual property czar," responsible for the enforcement of the nation's IP protection laws and answerable to the Executive Branch. But that would entail the creation of a major new wing of the Dept. of Justice whose responsibility would be to prosecute even the smallest cases, including instances that have typically been tried in civil court up to now.

On Tuesday, the person who could very well be appointed to that position -- albeit in the remaining weeks or even days of the Bush Administration -- if this legislation were to pass, sent a letter to Senate Judiciary Committee Chairman Patrick Leahy (D - Vt.), the bill's principal author, saying the DOJ isn't interested in handling such civil matters.

"We strongly oppose Title I of the bill, which not only authorizes the Attorney General to pursue civil remedies for copyright infringement, but to secure 'restitution' damages and remit them to the private owners of infringed copyrights," wrote Principal Deputy Assistant Attorney General Keith B. Nelson to Sens. Leahy and Arlen Specter (R - Penn.), the bill's co-sponsor (PDF available here from Public Knowledge). "First, civil copyright enforcement has always been the responsibility and prerogative of private copyright holders, and US law already provides them with effective legal tools to protect their rights."

As Title I currently reads:

The bill has received substantial support from both sides of the aisle, including from one of the Senate's leading experts on ethics, Orrin Hatch (R - Utah). But opposition to the measure continues to grow, especially from advocacy groups who contend that since intellectual property is private property, defending it should be a private matter.

Now, add the DOJ itself to the list, as Dep. A-G Nelson indicated that the US government should not step in to play offense in civil matters.

As Nelson's letter continues, "Title I's departure from the settled framework above could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry...The Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions, which only the [DOJ] may bring. In an era of fiscal responsibility, the resources of the [DOJ] should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil enforcement provisions."

This contention goes against the argument of Sen. Leahy and others that the Justice Dept. could effectively go to bat for "the little guy" -- individual citizens who may own patents and may find themselves infringed, without the means of defending themselves after the big industries that steal their IP.

Nelson went on to warn that the creation of the "czar's" office could entail an intrusion into the executive branch by matters and personnel that should, by definition, remain legislative. A judge could invalidate the law, he implied, on grounds that it violates the Constitution's separation of powers.

Sen. Leahy's and Sen. Specter's offices have yet to issue statements on the receipt of this letter from the Justice Dept., although much of today was spent in legislative business on Capitol Hill concerning the nation's economic crisis, and both senators were known to be personally active in negotiations for a deal that may rescue US financial institutions.