The Prioritizing Resources and Organization for Intellectual Property Act of 2008, or PRO IP Act, finally gathered the signature of President George W. Bush, and made it into law. The act, as we previously reported, has been criticized by both the US Departments of Justice (DOJ) and Commerce (DOC), but gathered support in the wake of economic troubles that have hit the US.
Title I of the bill, which allowed the DOJ to pursue civil copyright cases, was dropped by the senate when they passed the bill, with Richard Esguerra, spokesman for the Electronic Frontier Foundation, noting that he was relieved that attorneys won’t become “pro bono personal lawyers for the content industry.” However, the objections of the DOC – that the creation of a ‘Copyright Czar’ would be an unconstitutional violation of Separation of Powers – went unopposed. Included in the bill is the issue of ‘civil forfeiture’, where articles can be seized and held if it is thought they are to be used in committing a crime, or infringement.
The unanimous passage of this bill is worrying, mainly because it shows a triumph for lobbying over facts, and how common sense can be easily overruled with enough money and influence. Claims that support the bill include spurious job creations from this bill, to money saved in the economy. “Counterfeiting and piracy costs the United States nearly $250 billion annually,” says the US Chamber of Commerce in a Reuters article, while others have more effectively broken down the figures and pointed out how they don’t make sense.
Yet, in a country on the brink of economic meltdown, a bill that is claimed to help the economy by creating jobs (and boost the economy by reducing those jobs and revenue claimed to be lost) seems like a good political move, regardless of how absurd and baseless the figures are. Dan Glickman of the MPAA certainly wants to play the economic card, saying: “At this critical time for our economy, it’s important to send a message that the jobs created and maintained by the protection of intellectual property is a national priority.”
The person filling this Copyright Czar role will, presumably, be in a similar position to that of the Drugs Czar, and will listen mainly to lobbyists and ‘safe’ peer pressure. Just as in the case of narcotics, and symptoms will be dealt with, and not causes. Targeting causes means targeting contributors, while targeting symptoms just means targeting voters, and there are millions of them. It also remains to be seen who will be given the role of Copyright Czar, but don’t be surprised if it’s a member of the MPAA/RIAA, although some might start pushing for Prof. Lessig, as happened when California’s 12th District lost its congressman. However, Prof. Lessig told TorrentFreak that he’s “not going to be an enforcement czar, and nor would I be wanted for that.”
Perhaps the worst aspect of the bill, though, is the extension of forfeiture. Already used extensively in drugs cases, it is often inappropriately applied. If drugs are found in someone’s home, and along with that comes a claim from a 3rd party (even if they were caught breaking into the home) that they were dealing, the home owner can have their house taken away, along with anything of value in it.
Although some may feel that forfeiture is an appropriate response to serious large scale drug dealing, those same draconian measures can now apply to copyright infringement cases. It can cause more expense and difficulty in defending cases when defendants have to prove in a separate court action, that the materials seized were not used for the actions claimed. Wikipedia indicates that 3 years, and $10,000 is the typical cost of fighting such cases. Public Knowledge opposes these forfeiture measures, with spokesman Art Brodsky saying: “Let’s suppose that there’s one computer in the house, and one person uses it for downloads and one for homework. The whole computer goes.”
The increase in powers and fines exacerbates an already bad situation. With the forfeiture laws, in theory they may be able to have equipment belonging to ISP’s seized (while the DMCA gives safe harbor for prosecution under infringement, it may not allow a defense under forfeiture) and that could be used as a club to beat ISPs into the role of copyright police – one that ISPs worldwide have been loathed to accept.