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Monday, November 10, 2008

The PRO-IP Act

by Holly Lance, MTTLR Associate Editor

It may be time to quit that nasty BitTorrent habit. On October 13th, President Bush signed into law the PRO-IP Act (Prioritizing Resources and Organization for Intellectual Property Act of 2008), which greatly increases the power of the federal government to protect copyright and trademark owners.
Some of the big changes coming down the pipe:
  1. A court can take away your computer if you download illegally - §102 of the Act specifies that during a civil action, a Court may order the impoundment of all copyrighted material and the means by which the material can be reproduced, as well as all documentation regarding the creation, sale, or receipt of these materials.
  2. Counterfeiters could pay up to $2 million in damages - §103 raises the range of statutory damages available considerably, with the new maximum fine being $2 million, doubling the current $1 million max.
  3. Harsher criminal penalties for infringement - §205 punishes infringers with jail time (up to life) if someone is seriously injured or dies as a result of the trafficking of counterfeit goods or services.
  4. There will be an “IP Czar” - §301 creates the position of an Intellectual Property Enforcement Coordinator (appointed by the President and confirmed by the Senate), who will be in charge of an interagency intellectual property enforcement committee and will help facilitate coordination between agencies.

The law originated in the House last December (introduced by Rep. John Conyers (D-MI)), and passed in the House by a very large margin in May. A similar bill was introduced in the Senate by Senator Patrick Leahy (D-VT), and passed in the Senate unanimously and the House by a large margin (90.3% by both Democrats and Republicans). While many criticize the PRO-IP Act as harsh, the version that Bush signed has actually been toned down considerably, as previous proposals included much higher statutory damages, creation of a new federal agency, and giving authority to the DOJ to sue on behalf of copyright holders.

Young 1920's-era woman dressed as a pirate
Image Pirate Mona by Kim P. Used under a Creative Commons BY-NC-SA 2.0 license.
As expected, the RIAA and MPAA are quite pleased with the new law. The National Association of Manufacturers is happy too, and President John Engler calls the PRO-IP Act “a shining example of a bicameral, bipartisan effort to advance legislation to protect our consumers, jobs and businesses from intellectual-property piracy and counterfeiting.” Copyright infringement and counterfeiting are serious problems, and this Act represents a major step by the government in protecting IP owners. The RIAA and MPAA have been particularly concerned about P2P networks for several years, and if this Act is strongly enforced, it will give owners more tools for suing infringers and provide more federal oversight. In a tough economy like this, the Act can serve to bolster U.S. businesses, which lose $200-$250 billion and 750,000 jobs annually due to infringement and counterfeiting (or maybe not).

Not everyone is happy about the PRO-IP Act. Public interest groups like the Electronic Frontier Foundation and Public Knowledge criticize that the Act “amplifies copyright without protecting innovators or technology users” and “adds more imbalance to a copyright law that favors large media companies.” These groups are worried that the Act is unnecessary, will curtail legitimate fair use, and impose fines and seizures that are much too severe. Even the DOJ expressed its concern about the creation of an “IP Czar” and felt that such an enforcer would undermine the DOJ's independence.

It is hard to say at this point what will become of the PRO-IP Act. Obviously a lot will depend on who is to become the first “IP Czar”, which will likely be decided by the next president. Obama’s campaign plan already included the creation of a “Chief Technology Officer”. This Business Week article speculates that possible candidates for the position include Vint Cerf, Steve Ballmer, Jeffrey Bezos, Ed Felten, while the Wall Street Journal shows that some believe Google Chief Executive Eric Schmidt wants the job. One factor that may influence the decision is Obama’s recent battle against major copyright holder NBC, which took down a popular YouTube video mocking a McCain victory. His official stance is that there is a “need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment, while ensuring that intellectual property owners are fairly treated.” John McCain also seems to have a personal sympathy for fair use of copyright materials, as evidenced by this letter from his campaign to YouTube, which bemoans the “overreaching copyright claims” that have “silenc[ed] political speech” and wants to give campaigns special treatment. Ironically, the letter is dated October 13, 2008, the same day that Bush signed the Act. McCain also openly “supports efforts to crack down on piracy, both on the Internet and off.” While it seems like Obama may be more friendly to reform, keep in mind that it was Democrats who initiated the bills in both the House and the Senate. Obama will likely present a more “fair use”-friendly “IP Czar”, but the real question may be if he or she can get past the Senate.

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