Update: the bill has since been approved on a 14-4 vote.
The United States Congress returned to work this week, and senators appear to have copyright on the brain: A broad intellectual property enforcement bill introduced in July is slated for markup by the Senate Judiciary Committee Thursday, and another aimed at cracking down on piracy overseas was introduced Wednesday.
As Ars reported in July, the Enforcement of Intellectual Property Rights Act of 2008, sponsored by Sen. Patrick Leahy (D-VT), enacts a potpourri of measures long sought by content industries. Most significant of these is a provision allowing for the Department of Justice to bring civil suits against IP infringers, with any damages won to be turned over to content owners. It would also expand civil forfeiture powers in IP cases, create a federal copyright czar to "harmonize" IP enforcement between state and federal agencies, and establish liaisons to foreign IP "hot spots" where piracy is rampant.
In a letter sent to the Senate Judiciary Committee yesterday, a coalition of library associations and consumer advocacy groups criticized the bill, warning that an "unbalanced approach to enforcement would lead to unintended harms" that could stifle innovation. The letter blasted the law's civil enforcement provisions as an "enormous gift of federal resources to large copyright owners with no demonstration that the copyright owners are having difficulties enforcing their own rights." It also raised privacy concerns about the legislation's civil forfeiture language, noting that the seizure of servers or other large digital storage devices, often holding data belonging to multiple users, could compromise sensitive personal information.
Legislators may already have remedies for some of these concerns in the works. Sherwin Siy of Public Knowledge, one of the signatory groups behind yesterday's letter, told Ars that sources on Capitol Hill have described a series of changes to the bill likely to be made in markup Thursday afternoon. While the civil forfeiture provision will remain, a series of procedural safeguards may be added to prevent the disclosure of private information on seized devices, and language permitting seizure for violations of the Digital Millennium Copyright Act's controversial "anticircumvention" provisions will probably be excised. Also likely to end up on the cutting-room floor is language targeting goods in "transshipment"—that is, passing through the US on their way to a final foreign destination—that infringe American IP laws.
These changes would make the bill "a bit better," said Siy, "but they don't make it good, especially as long as this deputization of the federal government as a private attorney is still in there." Siy suggested that the Justice Department is itself less than sanguine about being asked to serve as legal pit bull for copyright holders.
A second IP enforcement bill introduced Wednesday by Sens. Orrin Hatch (R-UT) and Max Baucus (D-MT) would target foreign countries whose lax IP enforcement has landed them on the US "priority watch list," direct the US Trade Representative to develop country-by-country "action plans" for stepping up enforcement, and authorize the president to impose a variety of sanctions on noncompliant nations, ranging from curtailment of financial aid to revocation of favorable trade rules. The carrot to accompany those sticks is the authorization of "development assistance" to poor countries that need help cracking down on piracy.
Though the full text of the International Intellectual Property Protection and Enforcement Act of 2008 was not yet available at press time, the proposed legislation has already won plaudits from the US Chamber of Commerce, as well as the RIAA, which called the bill "a welcome verse in a great song."
Public Knowledge's Siy, by contrast, called both bills symptoms of a "skewed worldview" promoted by content industry lobbyists, which gives undue priority to IP issues. "Of all the things we want to focus DoJ attorneys on, it's going to be this?" asked Siy. "Of all the things we could to threaten to cut off trade for, it's going to be this?"Posted on