PRO-IP on to the White House
Monday, September 29th, 2008 by Patrick Ross
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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.
September 29th, 2008 at 10:33 am
Thanks, Patrick
I always look at new legislation from the perspective of the individual artist and small business developer, who still produce the vast majority of copyrighted works in this country. I think we all have reason to celebrate today.
I also think you hit the nail right on the head on this one. Surely, each copyright sector would like to have seen other provisions, which directly impact their development and operations, remain in this new PRO IP bill. However, by and large, this bill makes a huge “bipartisan” statement that all copyright companies and individuals will benefit from. After eight difficult years, I truly believe that the copyright pendulum has now swung our way.
The “innocent error” in registration provision is, indeed , a huge one. The reason that not many people mention it is because they must think that something as obvious as this provision would be a “no-brainer” to any fair-minded judge or jury. No so. As one who has directly suffered the consequences from an adverse ruling in court based on some of our earlier copyright registrations, I can attest to the fact that clarification here was very much needed, and is very much appreciated.
Large infrigers will no longer be able to steamroll over individuals or small developers on this critical registration issue. Statutory damage claims are crucial in the vast majority of copyright cases pertaining to Internet display and/or distribution. They also help legitimte copyright owners re-coup their attorneys’ fees. I sure hope that ALL copyright owners have now learned the importance of registering their copyrights.
Lastly, clarifaction of the law and additional resources added to the criminal side of this re-energized anti-piracy enforcement mission are both critical. As Senator Leahey mentioned last week, speaking specifically of the bailout activities up on Wall Street, dollar remedies and penalties, alone, do not deter or restrict the unlawful behavior of white collar criminals in our society, such as many willful copyright infringers are these days. The criminal copyright code calls for jail time in qualified cases, as well.
If we want other countries to respect our property, and our business ethics and morals, we better make sure we run a clean house internally here in the States. This new PRO IP bill will help. Criminal copyright laws need to be used aggressively to augment our ongoing educational efforts and our civil enforcement activities. Today’s anti-piracy stool needs all three of these legs to stand.
Thanks for all the extra efforts of you and your first class staff at the Copyright Alliance for helping to educate those in Congress and on the White House staff, regarding the importance of more stringent copyright laws and enforcement on all fronts.
I agree. It’s a great day for copyright owners!
George
George Riddick
Chairman/CEO
Imageline, Inc.
October 2nd, 2008 at 9:52 am
[...] of PRO-IP in the House and Senate wasn’t the only major congressional development this week. This development involves [...]
October 14th, 2008 at 1:26 pm
[...] addition, we can look forward to increased resources for IP enforcement. And as I like to point out, my favorite provision is one that means a “harmless error” in registration at the US [...]