President Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” — PRO-IP — on October 13, making it Public Law 110-403. Since then a lot of news reports and blog posts have denounced the law, and I have noticed that a number of them claim negative aspects of the bill based on previous proposed versions. One article last week linked to a report about the bill that was a year old and announced an aspect (about which I also wrote way back than) that actually was removed from the bill as it was finally passed and signed. So I spent my weekend reading the actual text of the final, adopted version to see what was and was not still there. The link above, from Washington Watch, includes both the text of the bill as signed and some analysis of it; here is a news report that also reflects the content of the bill correctly..
First, what is not in PRO-IP? The two most objectionable features, from my perspective, were both removed before final passage. First, earlier versions included provisions that would have dramatically increased the statutory damages available in copyright infringement cases. The obvious purpose of this provision was to make more money for the RIAA when it sues file-sharers, since the structure of the change would have increased the potential penalty for infringing a music CD by 10 or 12 times. That provision was not included in the final version. Also dropped was a provision that would have allowed the Justice Department to pursue civil (as opposed to criminal) copyright lawsuits, a provision one commentator called making federal employees essentially pro bono lawyers for the content industries. Because the Justice Department itself objected to the provision, it was omitted as well.
So what is left? Plenty of taxpayer money being spent to help out a few large content industries is the short answer. The Congressional Budget Office estimates that PRO-IP will cost over 420 million over four years.
PRO-IP has five sections. The first, dealing with civil enforcement, lowers the procedural barriers for bringing infringement lawsuits, and it allows for seizure and impounding of allegedly infringing products while the lawsuit is pending. It also raises the statutory damages available for counterfeiting of trademarks. The second section “enhances” criminal enforcement measures in a parallel way. Primarily, it allows for the seizure and ultimate forfeit of infringing goods and any equipment used to infringe. The potential effect here is that computer equipment used for widespread and wilfull infringement could be seized in exactly the same way that cars and boats used for drug crimes are now taken by law enforcement.
With sections III and IV, PRO-IP really starts spending your money; over 55 million dollars a year is explicitly appropriated to increase federal and local enforcement efforts. At the top, a new executive branch official is created — the Intellectual Property Enforcement Coordinator, or IP Czar, as the position has been called — whose job is not to seek balance in our copyright law, as is arguably the role of the Registrar of Copyright, for example, but directly to expand the role of the federal government in protecting these private rights. The section also creates a new enforcement advisory committee, replacing an earlier group with one whose membership is significantly expanded. This group is specifically charged with gathering information about the alleged cost of IP infringement that is used by the industry in its lobbying efforts. Now taxpayers will pay for that research. Indeed, this federal official is essentially a Cabinet-level lobbyist for Big Content.
PRO-IP also requires the addition of over a dozen FBI agents to full-time IP enforcement; it is not clear if these are new agents or ones who will be reassigned from less high priority duties. Twenty-five million dollars are also allocated for grants to local law enforcement to pursue those dangerous file-sharers, and 20 million to hire more investigators for the Department of Justice. The bill closes with a “sense of Congress” section that heaps great praise on the content industries and repeats much of the propaganda that those industries distribute to support their claim that federal intervention to protect their out-dated business models is necessary. It also informs the Attorney General of the United States that IP enforcement should be “among his highest priorities.”
As is probably clear, I think PRO-IP is still bad legislation. The provisions that most threatened to have a further chilling effect on higher education have been removed, but the bill still, in my opinion, is a huge gift of money to the major content industries. The result will be that taxpayers will shoulder even more of the burden of fighting their desperate battle to prop up a business model that both consumers and the technologies they use have passed by. Instead of looking for new ways to enhance and market their products, these industries continue to resort to legal enforcement that is bound to fail (see this report from the Electoronic Frontier Foundation on the fruitless campaign of the past five years), and they have now convinced Congress to invest much more taxpayer money in that effort.