Tuesday, October 14, 2008

President Bush signs PRO-IP Act

President Bush signed S.3325, now known as the Prioritizing Resources and Organization for Intellectual Property Act, or PRO-IP Act, into law on Monday Oct. 13, 2008.  This signature comes despite the bill still mandating the creation of an IP Enforcement Coordinator office within the White House--something the administration had previously characterized as "objectionable on constitutional separation of powers grounds".  As I have mentioned previously, one of the roles for this office will be to coordinate international pressure tactics, intended to promote an enforcement-oriented approach to IP law around the world.  The law will also authorize appropriations to fund enforcement activities at the local and national levels.

Beyond the creation of additional bureaucracy, the primary impacts of the law are: 
  • to increase the statutory damages and other remedies for civil counterfeiting cases; 
  • to prohibit the importation or exportation of "copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable"; and,
  • to add broad new forfeiture requirements, allowing the US government to seize "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense" under criminal copyright infringement statutes.
The latter provision is troubling, since it is rather broad, and could on its face be interpreted as allowing the seizure of any and all communication infrastructure involved in distributing infringing material.  While it is perhaps unlikely that the US government would (or could) attempt to seize the entire network infrastructure, it seem likely that innocent third parties will suffer when shared resources are affected.

This bill was supported by the RIAA, the MPAA, the US Chamber of Commerce, and the AFL-CIO.  It was opposed by Public Knowledge, the Electronic Frontier Foundation, the American Library Association, and at one point, the Bush administration itself.  However the most controversial aspect of the bill--a provision that could have diverted public resources into pursuing civil actions on behalf of (and to the benefit of) private rights holders--was dropped.

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