Will the PRO-IP Act Prove to be PRO-blematic?

by Shana Dines

Despite much controversy, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008, affectionately known as the PRO-IP Act, on October 13, 2008. 

The usual suspects were characteristically divided over the PRO-IP Act.  Big content owners (RIAA, MPAA) in the entertainment industry enthusiastically pushed the bill, while public interest groups (EFF, Public Knowledge) fiercely argued to have some of the most extreme provisions of the bill pulled. 

Another supporter of the act was the U.S. Chamber of Commerce, which reported that 40% of the nation's economic growth, more than $5 trillion, comes from intellectual property.  This includes music, movies, pharmaceuticals, fashion, and software, which together represent more than half of U.S. exports. 

Particularly in light of the current economic crisis, Congress and the President seemed eager to protect such a large portion of the economy.

Neither side got everything they asked for, however, both were relatively successful in reaching a compromise. 

The most newsworthy part of the bill is the creation of the Intellectual Property Enforcement Coordinator (initially referred to as the IP Czar, but changed to sound less ominous).  This will be an executive level, president-appointed position to chair an interagency committee to combat piracy and counterfeiting.  The compromise here was the limitation on the IPEC's authority to create whole new bureaucracies for
intellectual property enforcement.  

President Obama has not yet appointed the first IPEC, though industry-watchers, such as CNET, speculate it will be a recording-industry-friendly pick.  Some possibilities include lobbyists from the American Federation of Musicians, the RIAA, and NBC Universal. 

A surprising opponent of the bill was the Department of Justice, which, under the original language of the bill, was going to be authorized to file civil lawsuits for copyright infringement on behalf of copyright holders.  The DoJ was appalled at the prospect of becoming "pro bono" lawyers for the entertainment industry.  With the help of Senator Wyden (D-OR), this provision was removed before the bill reached the president's desk.

The final version of the bill also relaxed an original provision to significantly raise damages for filesharing, which was seen largely as a hand-out to the RIAA in their litigation war.

Still controversial and remaining in the PRO-IP Act are the increased forfeiture provisions, which will increase the government's authority from current law.  Forfeiture allows the government to confiscate equipment used or intended to be used to commit or facilitate the commission of copyright infringement, trademark counterfeiting, boot-legging live music, and recording movies without authorization. 

Traditionally, forfeiture provisions were specifically geared at large scale counterfeiting operations.  The PRO-IP Act expands this to include any potential copyright infringement, including personal computer use.  It also relaxes the requirement that the equipment to be seized must belong to the accused infringer, broadening the potential for government abuse.  

It is yet to be seen how the PRO-IP Act will operate in practice and how it will affect average citizens, but be sure to check back with the M.E.L.O.N. blog for updates.

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