Although legislative efforts towards patent reform appear to have stalled, the Senate recently expressed its commitment to enhancing trademark and copyright enforcement by introducing the Enforcement of Intellectual Property Rights Act of 2008. Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) introduced the bill, S. 3325, on July 24, 2008. Co-sponsors of the bill include Senators Evan Bayh (D-Ind.), George Voinovich (R-Ohio), Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas).
The bill is the Senate counterpart to the House’s Prioritizing Resources and Organization for Intellectual Property Act of 2007 (PRO IP Act), H.R. 4279. Leaders of the House Judiciary Committee introduced the PRO IP Act in December 2007 to strengthen enforcement against piracy, trademark infringement and copyright infringement. The PRO IP Act was overwhelmingly passed in the House in May 2008, by a vote of 410 to 11.
The bill aims to enhance civil and criminal intellectual property laws, coordinate federal efforts to combat counterfeiting and piracy and increase resources available to federal and local law enforcement agencies to combat theft of intellectual property. Some notable portions of the bill are the following:
- Authorizes the attorney general to bring civil actions against copyright infringers whose conduct constitutes criminal infringement, in addition to criminal actions.
- Amends the Copyright Act so that obtaining copyright registration of a work is not required before bringing a criminal infringement suit, although it would remain a prerequisite to bringing a civil suit.
- Increases the maximum statutory penalties for counterfeiting activities that endanger public health and safety—from 10 to 20 years imprisonment for knowingly or recklessly causing bodily injury—and imposes life imprisonment for knowingly or recklessly causing or attempting to cause death.
- In addition to those who intentionally use a counterfeit trademark, the Act provides for treble damages for persons who intentionally supply goods or services necessary to a violation of the Trademark Act.
- Doubles the statutory damages in trademark counterfeiting cases from the current range of $500 to $100,000 per counterfeit mark, per type of goods or services sold, to $1,000 to $200,000. Also doubles the maximum amount of statutory damages currently available for willful counterfeiting from $1 million to $2 million per counterfeit mark, per type of goods or services sold.
- Creates a new executive-level position, the Intellectual Property Enforcement Coordinator (IPEC), who would chair an inter-agency committee charged with creating a nationwide plan to enforce intellectual property laws.
As with the PRO IP Act, the Senate bill is not without critics. Gigi B. Sohn, president of the citizens’ advocacy group Public Knowledge, issued a statement warning that while the bill rightly targets commercial infringers, “some of these same enforcement provisions are likely to hurt ordinary consumers.” Sohn also criticized the proposal giving the Department of Justice authority to bring civil actions, arguing that, “this bill would turn the Justice Department into an arm of the legal departments of the entertainment companies by authorizing the DOJ to file civil lawsuits for infringement, forcing taxpayers to foot the bill.”
The Electronic Frontier Foundation, which previously expressed criticism for the PRO IP Act, has also voiced its disapproval of the bill. “One of the bill’s most disturbing changes would give the Attorney General new powers to sue individuals on behalf of rights holders like the MPAA and the RIAA,” EFF activist Richard Esquerra commented. Esquerra disagrees with one of the justifications offered for the proposal, namely, that allowing the attorney general to bring civil actions is necessary because some infringement does not rise to the level of criminal conduct. “This justification just doesn’t make sense,” Esquerra writes. “If it’s a low-level offense, why should our top cops pursue it?” Because those types of offenses can and will be pursued by copyright owners, Esquerra argues that “there is no reason the American taxpayer should be picking up Hollywood’s legal costs while movie studios are celebrating record box office returns and record-breaking single-title revenues.”