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Senate passes PRO-IP bill - September 26, 2008

Amid the death-spiral of our capital markets, the Senate found time today to pass unanimously the Enforcement of Intellectual Property Rights Act (S.3325), albeit without a controversial provision that would have given the Justice Department the authority to bring civil enforcement actions in copyright cases. The elimination of that provision makes the Senate bill much closer to the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act passed by the House earlier this year. Indeed, the new Senate bill has been rechristened PRO-IP, presumably to underscore the similarities. Assuming Congress stays in session for at least another day, the Senate bill could go back to the House, where it would likely pass.

What would happen at that point remains unclear, however. Like the House version of PRO-IP, the Senate bill includes a provision creating an "IP Czar" within the Executive Office of the President, a step the Bush Administration has strongly opposed. In a letter sent to Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) Wednesday strongly opposing the bill, the Departments of Justice and Commerce said the IP Czar measure would "improperly micro-manage the internal organization of the Executive Branch." The cabinet agencies also opposed giving civil enforcement authority to the Justice Department.

Although the White House has never explicitly threatened to veto the bill it hasn't promised a signature either. Whether removing one of the two provisions the Administration objected to will be enough to overcome resistance to the bill is unclear. Given the huge margins by which the bills passed each chamber, however, a veto would seem unlikely.

The usual suspects rushed out statements on the Senate's action:

Mitch Bainwol, chairman/CEO, RIAA: “This bill truly is music to the ears of all those who care about strengthening American creativity and jobs. At a critical economic juncture, this bipartisan legislation provides enhanced protection for an important asset that helps lead our global competitiveness. The intellectual property industries are widely recognized as a cornerstone of the U.S. economy. Additional tools for intellectual property enforcement are not just good for the copyright community but for consumers who will enjoy a wider array of legitimate offerings.

Patrick Ross, executive director, Copyright Alliance: “Increased copyright enforcement, combined with better coordination of intellectual property policy across the federal government, will be a boon to all of us who love creative works, as we can look forward to U.S. artists and creators maintaining their leading role in the world of producing creative works that enrich our culture and drive our economy.

Gigi Sohn, president Public Knowledge: "It is unfortunate that the Senate felt it necessary to pass this legislation. The bill only adds more imbalance to a copyright law that favors large media companies. At a time when the entire digital world is going to less restrictive distribution models, and when the courts are aghast at the outlandish damages being inflicted on consumers in copyright cases, this bill goes entirely in the wrong direction."
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"At a minimum, we are pleased that the Senate bill as passed does not include the egregious provision allowing the Justice Department to file civil suits against alleged copyright violators on behalf of copyright holders. This provision was a total waste of the taxpayers’ money. We are grateful to Senator Wyden for his leadership in getting that provision removed. We still would have preferred that the bill not pass."

Tom Donohue, president/CEO U.S. Chamber of Commerce: "It speaks volumes that efforts to protect American intellectual property have passed with over 400 votes in the House and unanimously in the Senate...I commend both chambers for having passed strong intellectual property enforcement bills this year.It is now time to take the final step by sending legislation to the President, who can leave a lasting legacy to support America’s innovation economy by signing it into law."

As passed, both the House and Senate versions of the bill significantly increase resources for IP enforcement at U.S. borders and overseas. The Senate bill also increases civil and criminal penalties in IP cases, including copyright cases.
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