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

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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." •
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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