House Hearing on IP Enforcement

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Yesterday, Gigi testified before the House IP Subcommittee on H.R. 4279, an IP enforcement bill that threatens to increase penalties for copyright infringement. We've got her written testimony here, as well as a press release here.

One of our biggest concerns, the disaggregation of damages, was echoed by a wide variety of groups, including law professors, libraries, and software and consumer electronics manufacturers. This clearly seemed to have an effect on many of the Subcommittee members, with even staunch supporters of the bill noting that this provision deserves revisiting and (hopefully) revision.

That'd be welcome, since there's no question that statutory damages of some sort are often necessary--what's galling is the disproportionate nature of the damages.

Not covered as extensively were questions about the civil forfeiture provisions that the bill introduces. Under current copyright law, a court will confiscate from a criminal defendant goods that are "used in the manufacture" of infringing materials. The bill would expand this to include materials "used, or intended to be used, to commit or facilitate the commission of" an infringement. This opens up a whole new slew of goods that can be seized. William Patry, for one, has been understandably incensed at this. In a lengthy post (one worth reading in its entirety) covering a lot of legislative and policy ground, he lays out a lot of problems with the bill, ending with the forfeiture provisions, including examples of how a broad-brush civil forfeiture provision can be easily abused.

A couple of less welcome topics mentioned during the hearing were the possibilities of reducing the DMCA safe harbors that keep ISPs and websites from being sued out of business, as well as the idea that ISPs and universities should be required to spy on network users to seek out copyright infringement. We've gone into some detail as to why mandating copyright filters aren't a particularly good solution before.

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