Category: Copyright

Noted copyright lawyer William Patry, who is Google's Senior Copyright Counsel and who is the author of the seven-volume Patry on Copyright, has published a trenchant analysis of the PRO IP bill ("What Does It Mean to Be Pro-IP?"). (Note that Patry indicates in his blog that:"The views in this blog are strictly mine and should not be attributed to Google Inc.")

Here's an excerpt:

This provision [SEC. 104. COMPUTATION OF STATUTORY DAMAGES IN COPYRIGHT CASES] is one of the most gluttonous in the whole bill. It seeks to expand radically the amount of statutory damages that can be recovered, and in cases where there are zero actual damages. The provision 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 MP3.com litigation, a decidedly non-piracy or counterfeiting case, instead involving the use of digital storage lockers. Under the original MP3.com decision, where a CD had twelve tracks, there was only one award of statutory damages possible. Under the bill, there may be 25: there would be 12 for each track on the sound recording, 1 for the sound recording as a whole, and 12 for each musical composition. Under this approach, for one CD the minimum award for non-innocent infringement must be $18,750, for a CD that sells in some stores at an inflated price of $18.99 and may be had for much less from amazon.com or iTunes. The maximum amount of $150,000 then becomes three million, seven hundred and fifty thousand dollars per CD. Now multiple that times a mere ten albums, and one gets a glimpse at the staggering amount that will be routinely sought, not just in suits filed, but more importantly in thousands for cease and desist letters, where grandmothers and parents are shaken down for the acts of their wayward offspring. These private non-negotiable demands don’t see the light of day, but they have resulted in "settlements" wherein ordinary people have paid abnormal amounts of money rather than be hauled into court and thereby incur costs that will bankrupt them. One only wishes Congress would hold a hearing on this practice.

In the U.S. House of Representatives, Reps. John Conyers, Jr. (D-MI), Lamar Smith (R-TX), Howard Berman (D-CA), and nine other House members have introduced the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" (PRO IP).

Here's an excerpt from the press release:

Specifically, the PRO IP bill does the following:

• Titles I and II strengthen the substantive civil and criminal laws relating to copyright and trademark infringement.
• Title III of the legislation establishes the Office of the United States Intellectual Property Enforcement Representative (USIPER), in the Executive Office of the President, to enhance nationwide and international coordination of intellectual property enforcement efforts.
• Title IV provides for the appointment of intellectual property officers to work with foreign countries in their efforts to combat counterfeiting and piracy.
• Title V of the legislation authorizes the creation of a permanent Intellectual Property Division within the Department of Justice. The purpose of the new IP Division is to improve law enforcement coordination. This is accomplished, in part, by transferring the functions of the existing Computer Crime and Intellectual Property section (CCIPs) that relate to intellectual property enforcement to the new IP Division. In addition, Title V provides DOJ with new resources targeted to improve IP law enforcement, including local law enforcement grants and additional investigative and prosecutorial personnel. It also requires that DOJ prepare an annual report that details its IP enforcement activities.

Read more about it at "Congress' Copyright Reform: Seize Computers, Boost Penalties, Spend Money"; "Major Copyright Bill Boosts Penalties, Creates New Agency"; and "Piracy Law Unveiled in Washington."

There are persistent reports that the Canadian government will introduce copyright legislation that is modeled on the U.S. Digital Millennium Copyright Act as soon as next week.

Read more about it at "Canada Moves to Reform Copyright Protection"; "Canada's Coming DMCA Will Be the Worst Copyright Yet"; "Canada’s Copyright Law Is Stronger and Better than U.S.'s"; "Copyright Choices and Voices"; "DMCA-Style Laws Coming to Canada, Switzerland"; and "A New Copyright Law Is Coming."

John Tehranian, Professor of Law at the University of Utah, has written a paper for the Utah Law Review titled "Infringement Nation: Copyright Reform and the Law/Norm Gap."

Here's an excerpt from the paper where Tehranian summarizes the infringement activity of a hypothetical U.S. law professor during a single day:

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges).

If copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer—a veritable grand larcenist—or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.

Public Knowledge's Alex Curtis has written a useful section-by-section analysis of the Intellectual Property Enforcement Act of 2007.