ILNews

President signs new federal IP law: Legislation considers piracy issues, creates 'copyright czar'

Back to TopCommentsE-mailPrintBookmark and Share
The United States is stepping up to better protect intellectual property.

If there was any doubt before, it's official now with a new law signed by President George W. Bush Oct. 13. Known as the Prioritizing Resources and Organization for Intellectual Property Act of 2008, or PRO IP for short, the law is designed to strengthen existing copyright laws, create civil forfeiture clauses so equipment believed to be used in an IP crime can be seized, and establish a cabinet-level position to oversee this country's IP enforcement and educate other countries about the laws in effect here.

Seen as sweeping IP enforcement legislation combating the billions of dollars in entertainment industry sales lost each year to piracy, the Senate unanimously approved the bill in its final form in September. Prior to that support, the legislation was widely seen as controversial in its earlier stages.

One of the most controversial measures of the bill gave the Justice Department the authority to sue copyright infringers on behalf of Hollywood and the music industry. That aspect was removed after the White House lobbied against those new powers, arguing it would create unneeded bureaucracy and would amount to federal prosecutors becoming "pro bono lawyers for private copyright holders regardless of their resources."

Though that aspect of the legislation was ultimately removed, the final version of this bill was backed by the movie and recording industry, unions, manufacturers, and the U.S. Chamber of Commerce.

"This sends a stronger message that we're serious about IP rights and enforcement," said L. Scott Paynter, a partner with Krieg DeVault in Indianapolis. "Part of it parades our views on intellectual property, and in that sense we're trying to send a warning or message that we'll tackle this issue seriously."

One of the most publicized portions of the new law is an executive-level position of "Intellectual Property Enforcement Coordinator," which is being dubbed as a copyright czar. This person would need Senate confirmation just as any federal judge or prosecutor, and the post is similar to the drug czar created by Congress in the 1980s to wage a war on drugs.

The new copyright czar will oversee what's now handled by various agencies and committees - government anti-piracy crackdowns and training for other countries about IP enforcement. That person's primary responsibility will be to chair the "intellectual property enforcement advisory committee," created in Section 301 of the act, a group brought together from several agencies that include the Department of Justice, Department of Homeland Security, Patent and Trademark Office, and the Office of the U.S. Trade Representative. The law says the person in this position "may not control or direct any law enforcement agency in the exercise of its investigative or prosecutorial authority" but that the primary function is to develop a "joint strategic plan" to wage war on those who infringe on copyrights, which includes facilitating the sharing of information among law enforcement agencies and other countries. The bill also doubles the penalties for copyright infringement and counterfeiting.

"The establishment of this federal position will focus our initiatives outside our borders," said Indianapolis attorney Todd Vare, who chairs Barnes & Thornburg's IP practice group. "We're trying to do exactly what happened when the drug czar was created, collaborating with other countries and working with them to eliminate IP infringement and these notorious piracy efforts."

Paynter, who often handles software registration issues for clients, said what strikes him about the new law more significantly than the copyright czar position is a harmless error provision.

All information from databases isn't always available and can lead to inaccurate or inconsistent data, he said. Prior to this law, that could result in harsh penalties if that information was deemed inaccurate.

"This helps insulate you from that," Paynter said. "That harmless error provision jumped out at me more than the czar aspect."

Vare said it's hard to tell what the impact will be in Indiana and across the country, but he doubts it will result in big companies filing suits to rake in damages for profit.

Attorney Jonathan Polak with Taft Stettinius & Hollister in Indianapolis said the cornerstone of the new law is the improved statutory damages scheme, but that practically nothing much is changing because judges will have the final say on what damages are awarded. This act provides guidance in clarifying what constitutes "use" of copyrighted material, which is necessary to avoid inconsistent court rulings, Polak said.

"What IP holders need is certainty as to the scope and enforcement of their rights, and legislation that promotes certainty in those areas is always good," he said. The court system takes it from there. In five years, we'll know whether this accomplishes those goals or whether it was, as its opponents feared, making government nothing more than Hollywood's proxy." •
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT