Senator fuses controversial IP bills into big, bad package

[David Farber <dave () farber net>]

________________________________________
From: Richard Forno [rforno () infowarrior org]
Sent: Saturday, July 26, 2008 3:53 PM
Cc: David Farber
Subject: Senator fuses controversial IP bills into big, bad package

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.


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