A look at S. 2317, The Intellectual Property Enforcement Act of 2007

Here's a quick section-by-section breakdown (with commentary) of the provisions of the newly introduced IPEA by Sen. Leahy, S. 2317.

Section 1: The title of the bill

Section 2: This section allows the Attorney General to bring a civil cause action for conduct that would otherwise be criminal infringement of copyright under section 506 of Title 17. This language comes from the old PIRATE Act, and as before, we believe that is an inappropriate use of federal funds to enforce private rights of action--something that rarely occurs under other parts of the law, and at those times, typically as a "public good" (as opposed to the benefit of an individual, movie studio or record label). Here, you have the DOJ acting as a copyright holder's private attorney.

Section 3 & 4: Provides DOJ and FBI with new tools and funds to deal with IP Crimes, including restructuring and reassigning of enforcement groups and Computer Hacking and IP units, domestically and internationally. $12 million are authorized toward combatting these IP crimes.

Section 5: The Let's-get-rid-of-copyright-registration section, at least with regard to the requirement for registration for criminal infringement cause of action. This is something that is also being discussed in the House and it just doesn't make sense to me. The predominant copyright holders (like the studios of the MPAA or the labels of the RIAA) register their works, and of anyone, those are the folks that will be able to urge the FBI to make a raid and the DOJ to file a criminal infringement action.

The last time we visited this issue, was in the case of the Hulk movie, where the motion picture was leaked onto the Internet by a (former?) friend industry insider. At the time of the leak, the movie's copyright wasn't yet registered (as it hadn't yet been released), but apparently after the leak, a copy was expeditiously registered. Universal Studio worked closely with the FBI and DOJ and brought the infringer to justice--but shortly thereafter, the studios were on Congress' doorstep saying they needed something better than registration, like "pre-registration"--a placeholder for a copyright registration until a work is released to the public. Congress granted the studios this preregistration system with FECA in 2005.

Clearly, the studios don't perceive registration as a burden as the register their works and even went so far as to have a whole new layer of pre-registration designed for them and written into law. So, why are we getting rid of yet another incentive to register a copyrighted work?

To take it a step further, if we're trying to match copyright owners and users in the context of orphan works (which Sen. Leahy's office was taking the lead on this session of Congress), why are we giving removing an incentive to register (criminal enforcement of copyright) from those who might take advantage of the copyright registry. This becomes yet another reason not to bother registering, and exacerbates the orphan works problem.

Section 6: This section provides the method for a court to impound records pertaining to "the manufacture, sale, and receipt of things involved in" the act of infringement. From there, apparently the parties can ask the court for discovery of the information therein. This provision sounds interesting, especially in light of the Grokster decision where the big concern from many manufacturers was that the inducement standard for secondary liability could bury an innovator in endless litigation (especially with respect to discovery). This provision may be designed to be a more convenient way for the copyright owner to get at hard-to-discover information.

Section 7: This section repeals Sect. 509 of the Copyright Act, which provides for seizure and forfeiture of infringing goods and devices used for making those goods. It redirects forfeiture, destruction and restitution in Section 506 to a new provision under Title 18, which it creates later in the bill.

Section 8: This section makes the exportation of infringing copies an offense, along side the infringing importation of a copyrighted work without the authority of the owner. The limitations of personal importation still apply, however an interesting retroactivity seems to have been added:

(2) Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106 and is actionable under sections 501 and 506.

(above emphasis added)

So, if you were safe to export a work without permission before this legislation, the copyright owner might now have a cause of action against you for export?

Section 9: Reopens the DMCA, and drops in some new definitions into Sect. 1201. The definitions pertain to the trafficking of access circumvention and copy protection circumvention tools, which is generally prohibited under the DMCA. First up is defining "financial gain," -- typically a necessary part of trafficking includes an exchange of monetary value, but here we have a different take:

(B) the term ‘financial gain’ includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works;

The trafficker under this provision only need to expect to receive anything of value, which can even include a copyrighted work (couldn't that just be an email or a post-it note?).

The next definition goes right at trafficking:

(C) the term ‘traffic in’ means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of.

So here "traffic in" essentially means that you either make the exchange for "financial gain" or you intend to make the exchange without the financial gain.

Still trying to figure out what kind of trafficker a copyright holder is trying to get at with these definitions that they can't already get at under the DMCA. Are they looking for the makers of Handbrake? Are they wanting to prevent encryption researchers who already have a carve out, from trafficking in research tools to their colleagues? The blind from trafficking in e-readers?

Something else interesting is that the section strikes the term "import" here:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -

Removing the positive "import" may mean that negative export now is also prohibited. That would mean that if one wanted to make an access circumvention or copy protection circumvention tool in the U.S. only for export (because believe it or not, circumvention is not prohibited in other countries) that this would be illegal.

Oh, and incase you hadn't noticed, this is a first-time-since-its-introduction (I believe) reopening of the DMCA, which we've always been told by committee staff, is verboten. I guess not for the content industry.

Sections 10, 11, 12, and 13: These provision make trafficking under the Economic Espionage Act, trafficking in counterfeit labels, unauthorized recording of motion pictures, and trafficking in counterfeit goods or services subject to the forfeiture provisions of a new section 2323 to be added to Title 18, in the next section...

Section 14: Creates a new Section 2323 under Title 18. In this section there is a civil forfeiture provision. Property subject to forfeiture includes:

  • Articles that infringe copyright, anti-circumvention tools, counterfeit labels, unauthorized fixations of music in sound recordings or videos, unauthorized fixations of motion pictures, counterfeit goods or services,

  • Property “used or intended to be used in any manner or part” in the commission of these offense, and

  • Proceeds of the offense

There's a provision for criminal forfeitures as well, which subjects the kinds of property listed above to criminal forfeiture if a person is convicted of an offense. Lastly, a court must order restitution to victims of the offense. Currently, a court can order the destruction of a device impounded in the course of a civil suit filed under section 1201 of the Copyright Act, but there is no provision for criminal forfeiture. This section would add a provision for forfeiture.

So, that's it on S. 2317 for now, thanks to Rashmi for her help in the analysis of this bill. Unfortunately, we're waiting to hear when a similar bill in the House from Mr. Conyers will drop as well. What do you think about some of these provisions?

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