President Bush recently signed into law the Prioritizing Resources and Organization for Intellectual Property Act, also known as the PRO IP Act.  The act diverts resources from various agencies of the Federal government to enforce the rights of copyright, patent, and trademark holders.  The act stiffens penalties for copyright law and creates a co-ordinator position in the White House responsible for enforcing IP law similar to the Office of National Drug Control Policy (more commonly known as “the Drug Czar”). In other words, it creates a Copyright Czar.

Image Credit: Matúš Petrila.

In what might be one of the most amazing aspects of this bill’s story, the Department of Justice actually lobbied Congress not to pass this law.  DOJ wanted more control over its resources and priorities.  Under the bill as originally proposed, the Copyright Czar would be able to order the FBI, US Attorney’s Office, Homeland Security, and the other relevant enforcement agencies around with regard to their IP enforcement activities.  The original bill even went as far as to make the DOJ responsible for prosecuting civil cases against IP right infringers that would otherwise be the responsibility of the copyright holder.  In a strongly worded message to Congress, the Justice Department said that it didn’t want US Attorneys “serving as pro bono lawyers for private copyright holders.”  The Act was in fact amended to remove these provisions, but the bill still requires the creation of a Cabinet-level position to fight IP infringement.  It also widely expands the nature of infringement suits and allows for forfeiture of assets owned by accused infringers before a judicial finding of infringement.

There’s nothing wrong with stringent enforcement of legitimate intellectual property rights.  If a person really was engaging in pirating movies or sharing copyrighted files over the Internet, I have no qualms about going after the person and having them pay damages.  But this law increases penalties in some truly bizarre ways.

Under this law, if I were to download a pirated copy of a magazine (yes, you can do that), each article in the magazine, each photograph, each advertisement is a separate count of copyright infringement.  What was once a single act of infringement is now dozens or even hundreds of infringing acts.  Needless to say, the penalties for infringement in such a situation boggle the mind.  What would have been a single act of copyright infringement for downloading the Avenue Q soundtrack is now twenty separate infringement acts, with twenty separate infringement penalties.

The seizure provisions of this law are also highly troubling.  When I worked as a software developer in college, we had a spare computer that was all but useless, but had a large hard drive.  So we loaded up with music as used it as a streaming media server for our office.  I would venture to guess that some of the music on that machine was not legally obtained.  The vast majority, though, was legal, and it was only on one machine. However, under the law as it’s written, the business could have lost its entire computer infrastructure as a result of our actions.  Not only that, but the entire computer infrastructure could have been seized even if all the music was legal–all that would be necessary is the accusation of infringement.

Many advocates for weaker IP laws also fear that the law would be used to bully Internet Service Providers into engaging in overly cautious conduct and the banning of otherwise legal conduct over the Internet because ISPs would be too afraid of losing their entire business through no fault of their own.

The worst part of this law is that there was no need for it. Frankly, there was nothing wrong with the intellectual property enforcement model as it existed before.  It didn’t need to be changed.  File sharers and other piraters of online and offline media were and are being prosecuted and sued civilly.  Sure the recording and movie industry took public relations hits, but the right people were being punished for the right things.  Everything was working as it should.  Laws like this and the Digital Millenium Copyright Act only make people think that copyright holders are trying to rig the system against them.  If their goal is to turn piracy from a simple matter of cheating record companies to a sort of civil disobedience, they’re well on their way.