PRO-IP Act and the Copyright Czar

A Nation Law Journal article reports on the PRO-IP Act (“Prioritizing Resources and Organization Intellectual Property Act“) which became law in October. This new legislation, codified at 15 U.S.C 8101 et seq., is a substantial change in current copyright law and strengthens prosecution for the theft of intellectual property in the US with new civil and criminal enforcement measures and reforms by:

· increasing the statutory damages for the sale of counterfeit goods to a inimum of $1000 per trademark to a maximum of $200,000 per trademark;
· increasing the ceiling on statutory damages for the willful sale of counterfeit goods to $2 million;
· expanding the availability of treble damages for providing the equipment or services necessary to commit a counterfeiting violation where the provider intends them to be used for such purposes;
· creating the position of a “IP Czar” or Intellectual Property Enforcement Coordinator (IPEC) within the White House to chair an committee overseeing anti-counterfeiting efforts; and
· making money available for criminal enforcement of intellectual property laws by the FBI, the DOJ and local law-enforcement

The sense of the Congress in passing the law in Section 602 of the PRO-IP Act was that “counterfeiting and infringement results in billions of dollars in lost revenue for United States companies each year and even greater losses to the United States economy in terms of reduced job growth, exports, and competitiveness”. The facts supporting this assertion are not clear as the only factual legislative history of this law is House Report 110-617 citing statistics provided by proponents of increased copyright protection like the US Chamber of Commerce, the Coalition Against Counterfeiting and Piracy (CACP) and the Recording Industry Association of America (RIAA).

Opponents of the PRO-IP Act like the Electronic Frontier Foundation (EFF) question those statistics and argue that while prosecuting commercial pirates is a good idea, copyright law should distinguish between commercial counterfeiters and private users – like those caught up in the RIAA’s anti-downloading litigation dragnet, urging lesser penalties for noncommercial, personal copying for the latter.

Speculation on whom President-Elect Obama will nominate as IP Czar and how the new Administration will act on these reforms is the subject of reports in a Reuters and the National Journal.