Recently released documents from both the US and Canada suggests that national law enforcement officials have real concerns about becoming the “copyright police” for private rightsholders.

In 2008, Stewart Baker, the Assistant Secretary for Policy at the Department of Homeland Security, sent a letter (PDF) to the Office of the United States Trade Representative (USTR). USTR was then negotiating the Anti-Counterfeiting Trade Agreement (ACTA), which Baker worried would "harm national security" by forcing his department to spend more resources defending copyrights and trademarks—resources which might come at the expense of investigations into terrorism or counterfeit drugs.

Though not opposed to investigating intellectual property violations, Baker made clear that as a matter of principle, "the cost of enforcing private rights, such as trademarks, can reasonably be placed on the beneficiary.” He worried that ACTA could potentially create an "unhealthy incentive to shift enforcement from the private sector to government."

Canadian skeptics

The letter recently came to light as part of a Freedom of Information Act request. Another recent release, this time a WikiLeaks-sourced 2006 diplomatic cable from a US embassy official in Canada, put the matter even more strongly. While Hollywood and American officials were both demanding that Canada beef up its laws against movie camcording, the Royal Canadian Mounted Police (RCMP) didn't want to be bothered with the issue.

The movie industry had been making bold claims—chief among them the idea that 40 to 50 percent of all pirated movies sold around the world could be traced to camcorders in Montreal theaters. Several months after making this claim, the industry retreated; only 18 percent of the world's pirate movies came from Montreal theaters.

This may be one of the reasons why Canadian officials and the RCMP "have questioned the industry figures in the past," according to the US diplomatic cable. "Montreal RCMP officers consider theater camcording to be a low priority, and focus their IPR enforcement resources on violations that have a public safety dimension (such as counterfeit pharmaceuticals) or that cause serious financial losses. The officers expressed skepticism about the scale of the camcording problem and its impact on Canadian industry. The RCMP has encouraged industry representatives such as the CMPDA to undertake their own investigations of movie piracy and pursue civil litigation under the Copyright Act."

This emphasis on private investigation and litigation arose out of the desire to pursue more important cases, but also because the cops wanted the movie industry off their backs. "One RCMP officer expressed concern that the RCMP not be seen as 'the enforcement arm of industry,'" said the cable, "noting that the 'industry comes to [the RCMP] more and more' with requests for action."

Despite its reluctance to get involved, the RCMP did arrest someone described by the Canadian movie industry lobby as the key player in Montreal camcording, a man who allegedly recorded films in theaters on the day of release using a high-resolution webcam on a laptop. The reason for the arrest? "RCMP officers stated that they arrested the individual 'as a personal favor' to a CMPDA [Canadian Motion Picture Distributors Association's] official, and that they did not view theater camcording as 'a major issue.'"

It's not hard to see how the RCMP might worry about the perception that it is “the enforcement arm of industry” when it is arresting people as personal favors to those in the movie business.

Still, it's clear that not all officials have these sorts of doubts; Immigration and Customs Enforcement in the US has seized the domain names of alleged copyright and trademark infringers over the previous year after receiving lists of such sites from the movie, music, and luxury goods industries.