On October 13, 2008, President Bush signed into law The Prioritizing Resources and Organization for Intellectual Property Act of 2008 (Pro IP). With over 400 votes in the House and a unanimous Senate vote, this law, lawmakers believe, will better protect U.S. intellectual property and improve executive branch enforcement of IP laws. The law includes provisions that expand forfeiture penalties against infringers, clarify that copyright registration is not required for prosecution, increase funding to the Department of Justice, and provide for a new executive branch officer who will oversee and coordinate all federal responsibility for IP matters. Lawmakers hope these provisions will lead to increased prosecution against large commercial pirates as well as individuals.
The US Chamber of Commerce is one of the chief supporters of the law. The world's largest business federation's CEO and president, Tom Donohue, commended the Senate for its unanimous approval of the bill. He stated, "This is a win for both parties and, more importantly, for America’s innovators, workers whose jobs rely on intellectual property, and consumers who depend on safe and effective products." Also in support of Pro IP were NBC Universal's Chief Executive Jeff Zucker, the Recording Industry Association of America, and the Motion Picture Association of America.
While some are celebrating the passage of the new law as a triumph for innovators, others, such as Public Knowledge, a Washington, DC based public interest group that fights legislation it feels slows technology innovation or prevents fair use, strongly voiced opposition. Aided by other groups, it is responsible for the Senate removal of a provision that would have allowed the Department of Justice to bring civil suits and claim damages on behalf of private copyright holders. The concerns of these groups echo those voiced by William Patry, Senior Copyright Counsel for Google and author of the renowned treatise "Patry on Copyrights." In 2007, he stated that he worried that the bill "seeks to expand radically the amount of statutory damages that can be recovered, and in cases where there are zero actual damages." He further stated, "The provision is intended to benefit the record industry but will have terrible consequences for many others."
The Department of Justice also raised concern over the passage of the law because of its creation of a new enforcement officer: the Intellectual Property Enforcement Coordinator (IPEC). In an email sent shortly after the House passed the bill, Peter Carr, the department's spokesperson, wrote, "Establishing such an office would undermine the traditional independence of the Department of Justice in criminal enforcement matters." He further voiced concern over the political influence this position would be subject to. "Establishing such an office in [the White House] would codify precisely the type of political interference in the independent exercise of DOJ prosecutorial judgment that many members of Congress and senators have alleged over the last couple years."
The IPEC, appointed by the President and with the Senate's consent, will report directly to the President and Congress and chair a committee of representatives from offices including the Office of Management and Budget, the Department of Justice, the U.S. Trade Representative, the Patent and Trademark Office, the Department of Homeland Security, and the FDA.
The law's language attempts to keep the role of the Department of Justice intact. Congress included a provision that states, "The IPEC may not control or direct any law enforcement agency, including the Department of Justice, in the exercise of its investigative or prosecutorial authority." However, the IPEC is responsible for creating a joint strategic plan that unites all of the law-enforcement agencies and other countries, and facilitates information sharing.
Despite the dissidence created by the new law, supporters are pleased with the government's attention to IP enforcement. Many advocates of Pro IP, as well as those opposed, such as Public Knowledge, are hopeful an "orphan works" copyright law, allowing filmmakers and musicians to use copyrighted material if the copyright owner cannot be found, is soon to follow.
You can find the text of Pro IP, as passed by both the House and Senate, on the Thomas website:http://thomas.loc.gov/cgi-bin/query/z?c110:S.3325: