In polite but unmistakeable language, the Departments of Justice and Commerce yesterday told Congress that the new Enforcement of Intellectual Property Rights Act of 2008 (EIPRA) was a monstrosity so horrifying that only a stake through the heart of several key provisions could make it palatable. This is the bill, remember, that would give Justice the power to bring civil (not just criminal) lawsuits on behalf of groups like the RIAA, seek "restitution" damages, and then turn the money over to the private groups.

In other words, the DoJ could become a pro bono lawyer for the RIAA, freeing the trade group from all that bad PR and the millions of dollars it has spent filing tens of thousand of lawsuits in the last few years. Plus, the RIAA would still get all the money. Shockingly, the DoJ didn't think this a really good use of taxpayer-funded resources.

The letter (PDF) was sent to the Senate Judiciary Committee, which approved EIPRA several weeks ago. It starts out nicely enough, saying that both the Justice and Commerce departments "truly appreciate the bill's intention to enhance the tools available for protecting intellectual property rights." And then the gloves come off.

"Civil copyright has always been the responsibility and prerogative of private copyright holders," says the letter, "and US law already provides them with effective legal tools to protect their rights."

EIPRA could essentially nationalize this function, turning the government into "pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry."

Because the department has "limited resources," such a shift in priorities would only occur "at the expense of criminal actions, which only the Department of Justice may bring." Then the authors hint obliquely at the current financial crisis and the existing US debt, saying that "in an era of fiscal responsibility, the resources of the Department of Justice should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil enforcement provisions."

Public Knowledge, one of the DC groups that has been calling for (and managed to secure) some changes to the bill, was pleased by the letter, with President Gigi Sohn saying, "Let's hope Senators get the message."

The Computer & Communications Industry Association, funded by many of Silicon Valley's leading lights, also supported the letter.

"At a time when U.S. taxpayers are on hook to rescue the financial industry, why should they also foot the bill for the content industry’s financial fees?" said CCIA President Ed Black. "We appreciate Justice and Commerce alerting Congress to this flaw and support the administration’s efforts to fix this bill. This content protection legislation isn't ready for prime time."