Committee amends, approves “enormous gift” to Big Content

The Enforcement of Intellectual Property Rights Act of 2008, which was blasted by consumer groups and library associations this week as an "enormous gift" to the content industry, won the approval of the Senate Judiciary Committee this afternoon by a 14-4 vote. As first reported by Ars this morning, a series of amendments were added during committee mark-up, providing privacy safeguards for records seized under the law and stripping away several controversial provisions—though not the hotly contested section empowering the Justice Department to litigate civil infringement suits on behalf of IP owners. HangZhou Night Net

One significant change to the proposed legislation addressed, at least in some small measure, a concern broached by Public Knowledge and other consumer groups in a letter to the Judiciary Committee yesterday. Though the amended bill still creates expanded provisions for civil forfeiture of property implicated in an IP infringement case—potentially including servers or storage devices containing the personal data of large numbers of innocent persons—lawmakers altered the bill's language to affirmatively require a court to issue a protective order "with respect to discovery and use of any records or information that has been impounded," establishing "procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used." They did not, however, go so far as to immunize the data of "virtual bystanders" from seizure, as the letter had requested.

The forfeiture section was also modified to exclude, as grounds for seizure, the violation of the "anticircumvention" provisions of the Digital Millennium Copyright Act. The old language would have allowed for forfeiture of tools that could be used to circumvent digital rights management software.

Excised, as well, was language that would have barred the "transshipment" through the United States of IP infringing goods. Since different countries have different IP rules, this language would potentially have defined goods that were legal in both their country of origin and their final destination—because, for instance, differences in copyright terms allowed works to fall into the public domain overseas while still under copyright in the US—as contraband.

The amendments also added a seat for a representative of the Food and Drug Administration, as well as any "such other agencies as the President determines to be substantially involved in the efforts of the Federal Government to combat counterfeiting and piracy" on the "interagency intellectual property enforcement advisory committee" that the bill would create.

Two new provisions were tacked on to the end of the law. The first directs the Comptroller General to conduct a study of the impact of piracy on domestic manufacturers and develop recommendations for improving the protection of IP in manufactured goods. (Wouldn't it be better to do this sort of thing before enacting enforcement legislation?)

The second is a nonbinding "sense of congress" resolution stipulating that, while "effective criminal enforcement of the intellectual property laws against such violations in all categories of works should be among the highest priorities of the Attorney General," the AG should give priority, in cases of software piracy, to cases of "willful theft of intellectual property for purposes of commercial advantage or private financial gain," especially those "where the enterprise involved in the theft of intellectual property is owned or controlled by a foreign enterprise or other foreign entity." Which is to say, that copy of Photoshop you pulled off BitTorrent last week isn't on the top of the Justice Department's docket… yet.

Remaining intact was language that would give the Justice Department authority to pursue civil suits against IP infringers, awarding any damages won to the patent, copyright, or trademark holders. Critics have blasted this provision as a gift of free, taxpayer-funded legal services to content owners. The bill now goes to the full Senate, and must still be recognized with its counterpart legislation in the House, which lacks the language deputizing the DoJ to bring suit on behalf of IP owners.

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