[Infowarrior] - Senator fuses controversial IP bills into big, bad package

[Richard Forno]

Senator fuses controversial IP bills into big, bad package

By Julian Sanchez | Published: July 25, 2008 - 02:40PM CT

http://arstechnica.com/news.ars/post/20080725-senator-fuses-controversial-ip-bills-into-big-bad-package.html

Intellectual property legislation introduced in the Senate on Thursday  
would combine elements of two controversial IP enforcement bills: The  
PRO-IP Act, which passed the House by a wide margin in May, and the  
PIRATE Act, which has won Senate approval several times since its  
first introduction in 2004. The law would increase penalties for  
counterfeiting, empower federal prosecutors to bring civil suits  
against copyright infringers, create a federal copyright czar to  
coordinate IP enforcement, and provide for the seizure of property  
used to violate copyrights and trademarks.

Like PRO-IP, the Enforcement of Intellectual Property Rights Act of  
2008 would double statutory damages for counterfeiting, with damages  
as high as $2 million for "willful" trademark violations. It also  
empowers the president to appoint an Intellectual Property Enforcement  
Coordinator (or "copyright czar"), who would develop a "joint  
strategic plan" meant to harmonize the IP enforcement efforts of  
diverse federal agencies, including the Department of Justice, Patent  
Office, State Department, and Department of Homeland Security. The  
Attorney General is directed to deploy five further IPECs as liaisons  
to foreign countries where piracy is rampant, and to establish a  
dedicated IP task force within the Federal Bureau of Investigation.  
The law also appropriates $25 million annually for grants to state and  
local government agencies working to crack down on IP violations.

Some of the strongest criticism of PRO-IP has been directed at a  
provision, replicated here, that would allow for the seizure of  
"property used, or intended to be used, in any manner or part to  
commit or facilitate" a copyright or trademark infringement. While  
this language is presumably meant to target the equipment used by  
commercial bootlegging operations, it would also appear to cover, for  
example, the computer used to BitTorrent a movie or album.

The new bill also incorporates the idea at the core of the PIRATE Act,  
by permitting federal prosecutors to bring civil suits against  
copyright infringers. (While these suits would not preclude action by  
the copyright owner, any restitution to the owner under a government  
suit would be subtracted from the damages that could be obtained by  
private action.) Since 1997, prosecutors have had the authority to  
bring criminal copyright charges against large-scale infringers. But  
that power remains little-used, in part because of the high  
evidentiary burden prosecutors must meet in criminal cases; civil  
suits employ a less stringent "preponderance of the evidence" standard.

Sen. Patrick Leahy (D-VT), the primary sponsor of the legislation  
touted the bill at a Thursday press conference as a means "not only to  
protect jobs, but to protect that very unique American sense of  
inventiveness and creativity." (No word on whether Leahy has ever  
watched the YouTube clip of his own face-off with Heath Ledger's Joker  
in The Dark Knight.) "If hundreds of our cargo ships were being  
hijacked on the high seas or thousands of our business people were  
being held up at gunpoint in a foreign land, there would be a great  
sense of alarm and unshakable government resolve to act," said Sen.  
Evan Bayh (D-IN), a cosponsor of the bill. "That, in effect, is what  
is happening today, yet we are not doing nearly enough to stop it.”

Big Content greeted the bill with predictable cheers. The Motion  
Picture Association of America and Business Software Alliance both  
rapidly issued statements lauding the legislation as a guarantor of  
job growth. Less sanguine was Gigi Sohn of Public Knowledge, who  
criticized the bill's broad forfeiture provision and argued that the  
PIRATE provisions "would turn the Justice Department into an arm of  
the legal departments of the entertainment companies by authorizing  
the DoJ to file civil lawsuits for infringement, forcing taxpayers to  
foot the bill."

While the enthusiasm in both houses for similar legislation would  
appear to favor the bill's passage, most observers doubt that Congress  
will be able to move on the law before the beginning of summer recess.