Intellectual property legislation introduced in the Senate on Thursday would combine elements of two controversial IP enforcement bills: The PRO-IP Act, which passed the House by a wide margin in May, and the PIRATE Act, which has won Senate approval several times since its first introduction in 2004. The law would increase penalties for counterfeiting, empower federal prosecutors to bring civil suits against copyright infringers, create a federal copyright czar to coordinate IP enforcement, and provide for the seizure of property used to violate copyrights and trademarks.

Like PRO-IP, the Enforcement of Intellectual Property Rights Act of 2008 would double statutory damages for counterfeiting, with damages as high as $2 million for "willful" trademark violations. It also empowers the president to appoint an Intellectual Property Enforcement Coordinator (or "copyright czar"), who would develop a "joint strategic plan" meant to harmonize the IP enforcement efforts of diverse federal agencies, including the Department of Justice, Patent Office, State Department, and Department of Homeland Security. The Attorney General is directed to deploy five further IPECs as liaisons to foreign countries where piracy is rampant, and to establish a dedicated IP task force within the Federal Bureau of Investigation. The law also appropriates $25 million annually for grants to state and local government agencies working to crack down on IP violations.

Some of the strongest criticism of PRO-IP has been directed at a provision, replicated here, that would allow for the seizure of "property used, or intended to be used, in any manner or part to commit or facilitate" a copyright or trademark infringement. While this language is presumably meant to target the equipment used by commercial bootlegging operations, it would also appear to cover, for example, the computer used to BitTorrent a movie or album.





Sen. Leahy

The new bill also incorporates the idea at the core of the PIRATE Act, by permitting federal prosecutors to bring civil suits against copyright infringers. (While these suits would not preclude action by the copyright owner, any restitution to the owner under a government suit would be subtracted from the damages that could be obtained by private action.) Since 1997, prosecutors have had the authority to bring criminal copyright charges against large-scale infringers. But that power remains little-used, in part because of the high evidentiary burden prosecutors must meet in criminal cases; civil suits employ a less stringent "preponderance of the evidence" standard.

Sen. Patrick Leahy (D-VT), the primary sponsor of the legislation touted the bill at a Thursday press conference as a means "not only to protect jobs, but to protect that very unique American sense of inventiveness and creativity." (No word on whether Leahy has ever watched the YouTube clip of his own face-off with Heath Ledger's Joker in The Dark Knight.) "If hundreds of our cargo ships were being hijacked on the high seas or thousands of our business people were being held up at gunpoint in a foreign land, there would be a great sense of alarm and unshakable government resolve to act," said Sen. Evan Bayh (D-IN), a cosponsor of the bill. "That, in effect, is what is happening today, yet we are not doing nearly enough to stop it.”

Big Content greeted the bill with predictable cheers. The Motion Picture Association of America and Business Software Alliance both rapidly issued statements lauding the legislation as a guarantor of job growth. Less sanguine was Gigi Sohn of Public Knowledge, who criticized the bill's broad forfeiture provision and argued that the PIRATE provisions "would turn the Justice Department into an arm of the legal departments of the entertainment companies by authorizing the DoJ to file civil lawsuits for infringement, forcing taxpayers to foot the bill."

While the enthusiasm in both houses for similar legislation would appear to favor the bill's passage, most observers doubt that Congress will be able to move on the law before the beginning of summer recess.