House of Representatives introduces PRO IP Act

In its attempt to fight piracy as well as trademark and copyright infringement, the House of Representatives has introduced the Prioritizing Resources and Organization for Intellectual Property Act of 2007 (PRO IP Act) (HR 4279).

Major features of the PRO IP Act include:

  • the establishment of the Office of the US Intellectual Property Enforcement Representative, which will serve as the president's chief intellectual property advisor; and

  • the creation of an Intellectual Property Enforcement Division within the Department of Justice.

The act also strengthens current laws; for example, it increases the copyright damages recoverable by allowing each infringing song to be counted as a separate offence. The act also allows the Department of Justice to seize and auction any computer or other property used to facilitate a copyright crime (civil action forfeiture).

The act received significant support in a December 13 2007 hearing before the House Subcommittee on Courts, the Internet and Intellectual Property. NBC Universal executive vice president and general counsel Rick Cotton, representing the Coalition against Counterfeiting and Piracy, declared that "the Pro IP Act is a needed declaration of war, escalating the priority of this vital public policy by deploying dedicated enforcement resources to the battle".

Teamsters president Jim Hoffa also testified to support the act:

"Some people might think that it is no big deal to buy a knockoff handbag or fake DVD, but it is. These crimes kill jobs - good jobs that my union has fought to protect for more than a hundred years."

Hoffa testified that the US entertainment industry loses approximately 370,000 jobs yearly due to lost revenue from pirated and counterfeit media.

Dan Glickman, chairman of the Motion Picture Association of America, commented in a statement:

"I believe that the US business community can speak in one voice today in support of these legislative efforts to protect intellectual property. I am pleased to see a concerted effort by Congress to address this growing problem."

However, the act has its critics. Gigi B Sohn, representing the public interest group Public Knowledge, stated that "the bill rightly targets enforcement of copyright law against commercial infringers, but some of these enforcement provisions are likely to hurt ordinary consumers". Regarding the damages proposals, Sohn stated as follows:

"Increasing penalties is one of the least necessary, and quite possibly counter-productive, actions the committee could take. Instead of following the course of this bill, the committee should look to the future, to a more realistic and rational copyright regime that can adapt pre-VCR copyright laws to a post-YouTube world."

Google's senior copyright counsel, William Patry, commented on his personal blog that the act may be the "most outrageously gluttonous IP bill ever introduced in the United States". Regarding the damages proposals, Patry stated:

"[This] is intended to benefit the record industry, but will have terrible consequences for many others; the provision has nothing to do with piracy and counterfeiting; instead it seeks to undo rulings in the 2000 litigation, a decidedly non-piracy or counterfeiting case. The 'zero tolerance' of the act is dangerous because it threatens respect for law itself. People do not obey laws they abhor, and there is much to abhor in HR 4279."

The Electronic Frontier Foundation has also expressed criticism of the act. Activist Richard Esquerra stated:

"If the entertainment industry wants to pile on extraordinary penalties for the commercial pirates, it also seems like a good time to make adjustments that recognize that lesser penalties are appropriate for non-commercial, personal copying. Unfortunately, the PRO IP Act is just another in a long line of one-way ratchet proposals that amplifies copyright without protecting innovators or technology users."

Paul Devinsky and Rita W Siamas, McDermott Will & Emery, Washington and Irvine

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