OK. Hopefully you all realized that S. 4108, the APRIL Act of 2008, was a joke. After all, there were a few excesses in there that would indicate how ludicrous the bill is.
Well, sort of. A lot of the provisions we included in the fake bill were modeled after real proposals made either by legislators, content industry lobbyists, or other policymakers. Some of the provisions were even taken verbatim from introduced legislation like the PRO IP Act and the IP Enforcement Act. We've posted a newly marked-up version that provides the sources of some of the provisions of the APRIL Act, showing that a lot of the silliness surrounding IP policy isn't limited to today. Real language is marked in red; language that has some basis in real proposals is in blue.
Here's a summary:
Not Actually Jokes
Section 201 (creating a new crime of attempted infringement): This language is taken verbatim from HR 3155, the IP Enhanced Criminal Enforcement Act of 2007, and attempted infringement has also been proposed by the DOJ in their recommendations to Congress over the past few sessions.
Sections 301-303 (expanding forfeiture provisions for materials used in or connected to infringement, bootlegging, or circumvention): This is taken verbatim from S. 2317, the IP Enforcement Act of 2007. Note that this goes beyond what's in the House's PRO IP Act—it includes forfeitures for materials used in circumventing DRM.
Section 304 (adding copyright infringement to the list of offenses for which law enforcement can request a wiretap): With a couple of minor additions (the bootlegging provisions), this language is taken verbatim from the Justice Department proposal that has been submitted to Congress several times and is the basis for the PRO IP Act and the IP Enforcement Act.
Section 306 (disaggregating statutory damages for copyright): Also a verbatim quote from the introduced version of the PRO IP Act. This was the infamous Section 104 that was thankfully dropped from the bill at markup.
Based on Actual Arguments/Proposals
Section 202 (granting organizers rights in recounting sporting events): This may seem farfetched, but if you look at the copyright warnings distributed by the leagues, this seems to be what they think the law is. Also, the idea / expression dichotomy didn’t stop sports leagues from suing services that reported scores or fantasy sports leagues.
Section 203 (Serial Copy Management System): SCMS is real and it’s required on all digital audio recording devices (hardware), but not on the media. The major thing keeping DARDs from becoming completely crippled is Section 1002(d)(2).
Section 204(a) (Term extension for “forever and a day”): Perhaps not so likely that it will be passed, but not so unlikely that no one would propose it. Rep. Mary Bono Mack often approvingly quotes Jack Valenti’s assertion that copyright terms last forever minus a day.
Sec. 207 (Fair use as a limitation on liability; only available for libraries and archives): Another farfetched proposal with a basis in reality. Judge Alex Kozinski of the 9th Circuit has suggested that satire, and even parody, should fall outside of fair use but with penalties limited to a proportion of profits earned by the author of the derivative work.
As for the limiting of fair use to libraries: while it's not directly based on a real proposal, it's common for proposals that limit user rights to have a carve-out only for specific users like libraries and archives. All too often, these are the only institutions that a majority of legislators will recognize as good faith follow on users.
Sec. 209 (adding databases, broadcasts, fashion design, and auto parts to copyrightable works): IP protections for databases (beyond what exists for the creative compilation of data we have in the US) exist in Europe and have been proposed at WIPO. Broadcasters have lobbied for their own IP rights at WIPO, and in many countries have such a right under the Rome Convention. Fashion and auto parts copyrights have actually been proposed before Congress.
Sec. 307 (Rightsholders can hack infringers' computers): A few years ago, Senator Hatch advocated destroying the computers of file sharers.
And Representative Berman actually introduced a bill allowing content owners to hack alleged infringers' computers—though that proposal was at least a teeny bit more nuanced than the one proposed in the fake bill.
Sec. 308 (requiring ISP filtering and perma-banning for 512 safe harbors): More and more, the content industry is proposing that ISPs, and not just content hosts, be responsible for infringement that occurs on tier networks. Proposals range from requiring automated network filtering to a French-style “3 strikes” proposal. Some proposals have included a “blacklisting” provision that would seem to kick accused infringers off the Internet entirely.
Title IV: (“Dragon Shield” mandatory DRM): The outline of this section was taken from a bill by Senator Hollings in 2002, called S.2048. That bill would have required DRM on all digital media devices. As silly as this section of the APRIL act is, it's not too far from the real thing.