The House today held a hearing on the new PRO-IP Act that beefs up intellectual property enforcement. Rick Cotton, a top NBC lawyer and representative for the Coalition Against Counterfeiting and Piracy (CACP), called counterfeiting and piracy "a global pandemic" and "a dagger into the heart of America's future economic security." What the US needs, he said, is a "declaration of war." But not even the Department of Justice is convinced that PRO-IP, in its current form, is that sort of declaration.

Counterfeit goods are certainly a problem, and no one at the hearing stands opposed to crafting good intellectual property law to protect creative work and new products (even Public Knowledge's Gigi Sohn proclaimed her support for IP law and enforcement).

Rep. Darrell Issa (R-CA), who made money in the car alarm business and was the voice of the "Viper" system, used his opening statement to tell his fellow representatives about how other companies ripped off his products, including his voice, and sold them in the US market. Defective products would arrive at Issa's company that he had not even manufactured, though in the minds of customers, his company was to blame. Will PRO-IP help to fix such problems?

Concerns from Justice

The PRO-IP Act seeks to stem the "tsunami" (as one representative put it) of counterfeiting and piracy by making a pair of changes to the structure of the federal government. First, a new executive branch office devoted to intellectual property enforcement would be created in the White House, and it would be modeled on the office of the US Trade Representative. The Department of Justice would also get a new IP enforcement division that would consolidate work currently done in several other divisions.

Sigal Mandelker, a Deputy Assistant Attorney General at the DOJ, told the subcommittee that this plan raised some concerns at Justice. For one thing, having a White House office that can direct the priorities and investigations at Justice could undermine the independence of the department, she said. In addition, the current arrangement at Justice is "actually quite effective."

Public Knowledge weighs in



Gigi Sohn

Other concerns came from Gigi Sohn, president of Public Knowledge, who attacked the PRO-IP Act's increase to the statutory damages that can be leveled for copyright infringement. Referencing the Jammie Thomas case in Minnesota, Sohn noted that statutory damages are already "disproportionate penalties for infringement," and called on Congress to move them in the other direction.

Despite several significant criticisms of the bill, Sohn said that she was pleased with how subcommittee chair Howard Berman (D-CA) listened to many different stakeholders and had already removed the most egregious provisions from the bill.

"Unslakable lust for more"

Google's senior copyright counsel, William Patry, wasn't at the hearing, but he had a far less charitable take on the legislation. Calling it the most "outrageously gluttonous IP bill ever introduced in the US," Patry made clear that he was appalled by the "unslakable lust for more and more rights, longer terms of protection, draconian criminal provisions, and civil damages that bear no resemblance to the damages suffered."

One might expect that coming from a Google lawyer (the blog is written in his private capacity), since the company is a voracious consumer of copyrighted work, but Patry has himself served in the Copyright Office and has written perhaps the definitive seven-volume tome on the subject of US copyright law. Instead, he says, he is "pro-IP in this most important of senses. But an excessive amount of something that is beneficial in measured doses can become fatal in overdoses, and copyright is already at fatal strength."

The PRO-IP Act, with its attempt to increase statutory damages and increase forfeiture penalties for equipment used for copyright infringement, clearly moves in a way that Patry dislikes. Fortunately, when it comes to criminal matters, Justice remains steadfastly unconcerned with prosecuting minor infringement cases, as Mandelker again made clear in response to a question.

Still, with even harsher laws on the books, there's always a chance that the penalties won't hit only those who import ripped-off car alarms, but a huge array of ordinary Americans. Where penalties are needed, they should fit the crime. Ruining someone's financial life over the equivalent of a box of CDs or DVDs hardly seems to meet that standard.