HR 4279 and S. 3325:  which one is the lesser of the two evils?

Senators Patrick Leahy(D.Vt) and Arlen Specter(R-Pa.) introduced the “Intellectual Property Enforcement Act of 2008”, S. 3325 last Thursday. Like the PRO IP Act, H.R. 4279 passed by the House recently, S. 3325 seeks to ratchet up enforcement by combining under one banner violations of laws as varied as copyright infringement, trademark counterfeiting and use of spurious or false marks on goods and services and increasing penalties for their violation. It also, makes registration optional for criminal copyright infringement. We have said before and continue to say that such a provision would reduce the incentive to register and aggravate an already acute orphan works problem. While S. 3325 mostly tracks H.R. 4279, the two bills have some important differences. You can find Sherwin’s analysis of H.R. 4279 here. In this post, I want to focus on the differences between the H.R. 4279 and S. 3325.

First, unlike H.R. 4279, S. 3325 would authorize the Attorney General to bring civil actions for criminal copyright infringement and recover actual and statutory damages. As Alex points out, such a provision would result in an unjustified expenditure of scarce public resources to enforce private rights. It would also be an easy way to get around the higher burdens of proof required by a criminal action. What’s worse, nothing in the provision would prevent a copyright owner from bringing another action against the same infringer and recovering damages a second time around.

Second, S.3325’s forfeiture provisions are more expansive than those in H.R. 4279. Like the House bill, S.3225 would mandate forfeiture of equipment used and “intended to be used…. to commit or facilitate the commission of” copyright infringement, trademark counterfeiting, bootlegging live music performances, and recording movies without authorization. But to this list of offenses it adds circumvention of DRM and forfeiture of equipment used in the course of economic espionage and theft of trade secrets. As Gigi pointed out in her testimony before the House IP Subcommittee, H.R. 4279s forfeiture provisions already cast too wide a net. Adding DMCA violations to this list would serve no purpose other than to further imperil fair use. Copyright law is already so imbalanced that any changes to the DRM provisions should be moving in the direction of permitting circumvention for lawful uses. Instead, S. 3325 moves in the opposite direction.

In addition, S. 3325 does not contain an important safeguard present in the H.R.4279: the requirement that for civil forfeiture to apply, the property subject to forfeiture must be owned by the violator.

There are other differences between the H.R. 4279 and S. 3325 that have to do with the role of the IP Enforcement Co-coordinator (H.R. 4279 uses the term IP Enforcement Representative) within the office of the President and the role of the Attorney General. H.R. 4279 would confer more powers on the IP Enforcement Representative and mandate the creation of a new IP enforcement division within the DoJ. What is the justification for this increased dedication of law enforcement resources to enforce private IP rights? After all, if the RIAA’s lawsuit campaign against P2P users is any indication, the big content industries don’t need any additional help in protecting their rights.

So there you have it, a 15,000 ft comparison of the House and Senate enforcement bills. Although, the House bill seems like the lesser of the two evils, is either of them really necessary? Fighting counterfeiting and piracy may be important goals, but is it necessary to take away a family’s general-purpose computer as a good “intended to be used … to commit or facilitate the commission of an offense”?

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