The intellectual property rights enforcement bill, S. 3325, passed the US Senate Friday and the US House on Sunday. This legislation, once signed by the President, will give new tools to federal, state and local officials to enforce existing copyright laws and thus defend the rights of creators and copyright owners.

After moving to the House, the Enforcement of Intellectual Property Rights Act of 2008 by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA) was renamed the Prioritizing Resources and Organization for Intellectual Property Act to mirror the PRO-IP bill that previously cleared the House by a 410-11 vote. It was scheduled to be approved on the suspension calendar without a recorded vote Saturday, two members of Congress insisted on a roll call, so on Sunday afternoon S. 3325 easily cleared the 2/3 vote required by a vote of 381-41. The vote was very bipartisan, with Democrats voting 205-22 and Republicans voting 176-19.

The bill in its final form gives more resources to the Dept. of Justice to pursue intellectual property cases, but does not limit new agents solely to IP (they can be put on other urgent cases at the discretion of DoJ) and it builds in accountability in how resources are spent. It creates an IP coordinator position at the Executive Office of the President to work with the dozen or more agencies involved in IP, but retains authority at those agencies, and most specifically does not allow the IP coordinator to interfere or direct or authorize DoJ criminal investigations.

It does not authorize DoJ to pursue civil cases, but this is not the “loss” to copyright owners so many groups resistant to copyright enforcement insist it is. Not being in a position to need copyrights enforced, they can be forgiven for not understanding the perspective of most copyright owners on this. But let’s look seriously at DoJ civil enforcement for a minute. No one would dispute the fact that DoJ is overly taxed at a human-resource level. That is why we had to have a PRO-IP Act, to encourage more enforcement of existing IP laws. Whatever would possess the DoJ to spend the time and money pursuing civil cases previously pursued by copyright owners? Why would they want to take on that onerous task?

Answer: THEY WOULDN’T. This would have been helpful in one key situation. It is not uncommon for investigators to put in long months on a criminal case, only to decide their evidence is perhaps just a bit insufficient to bring a criminal indictment. However, by the lower threshold of a civil suit, there is more than enough evidence. The guilty party doesn’t go to jail, but there are consequences for bad behavior. Thus, any civil action by DoJ would have come out of an original criminal investigation, and those would not have involved college students sharing their music collection on LimeWire.

However, we’ll have to save this debate for another day. For now, creators and copyright owners can celebrate the fact that Congress recognized they have very real rights, that the law says those rights should be respected, and that the US government as well as state and local governments will take steps to enforce them. (PRO-IP contains grant programs for state and local enforcement.) Solid enforcement will provide a dramatic boon for the economy and jobs growth, as we noted in our statement Friday.

My favorite part of the bill? I’ve mentioned this before, it’s the part that never gets mentioned by anyone else. Finally, after years of setbacks, we are about to get signed into law a “harmless error” provision. Namely, individual artists and creators will no longer be denied their ability to pursue statutory damages in an infringement suit just because they made a minor mistake when registering at the U.S. Copyright Office. Thank you, Congress, for looking out for the illustrators, photographers and other individual creators out there who should be spending their time honing their art rather than learning the arcane subtleties of copyright registration.

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This entry was posted on Monday, September 29th, 2008 at 8:59 am by Patrick Ross and is filed under capitol hill, copyright opponents, counterfeit, creators, economy, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.