December 7, 2007 | By Richard Esguerra

"PRO IP Act" Aims to Increase Infringement Penalties and Expand Government Enforcement

This week, members of the House Judiciary Committee introduced the "Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act of 2007," a bill that ratchets up the federal government's role in dealing with intellectual property infringement. While portions of the bill seem legitimately targeted at combating mass, commercial counterfeiting operations, other parts are devoted to little more than protecting the entertainment industry's obsolete business models.

Going after commercial pirates is a good idea, but copyright law often fails to distinguish between commercial counterfeiters and regular folks -- like those caught up in the RIAA's anti-downloading litigation dragnet. If the entertainment industry wants to pile on extraordinary penalties for the commercial pirates, it also seems like a good time to make adjustments that recognize that lesser penalties are appropriate for noncommercial, personal copying. People who reasonably believe that what they are doing is a fair use, for example, shouldn't face ruinous liability if a court doesn't agree with them. Similarly, the thousands of music fans arbitrarily singled out for file sharing shouldn't have to risk their homes just to have their day in court. And, of course, technology companies shouldn't be put out of business just because their multi-purpose products are misused by their customers.

Unfortunately, the PRO IP Act is just another in a long line of "one-way ratchet" proposals that amplifies copyright without protecting innovators or technology users. One provision, entitled "Computation of Statutory Damages in Copyright Cases," seems aimed at allowing the music industry to threaten even higher statutory damages in its campaign to sue filesharers. Copyright law currently allows the RIAA to seek statutory damages per album, while the new law would allow them to seek damages per song. Under the new limits proposed by the PRO IP Act, someone who downloads each individual track from Guns N' Roses' 12-track Appetite for Destruction album could face a maximum statutory penalty of $360,000; as opposed to the current limit of $30,000 for the album.

Beyond its effects on file sharing litigation, the bill would create a new, taxpayer-funded federal bureaucracy focused on policing intellectual property domestically and overseas, including:

  • a United States Intellectual Property Enforcement Representative, appointed by the President,
  • an Intellectual Property Enforcement Division in the Department of Justice, and
  • additional intellectual property attachés to staff U.S. embassies.

These new federal bureaucrats would essentially have one responsibility -- protecting the business interests of the biggest names in movies, music, and software. All of these industries are profitable, many of the corporations are foreign, and yet they want the American taxpayer to pick up the tab. Surely, Americans would rather see their tax dollars spent helping businesses and individuals who don't have ample means to help themselves.

For more on this bill, check out Declan McCullagh's blog post, and Public Knowledge's comments.


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