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DOJ gives thumbs down to Senate IP bill; Leahy: They're wrong - September 24, 2008

The U.S. Department of Justice and the Commerce Department poured a bathtub-worth of cold water on the Enforcement of Intellectual Property Rights Act (S. 3325) on Wednesday, sending a strongly worded letter to Senate Judiciary Committee chairman Patrick Leahy (D-Ver.), the bill's principal sponsor, rejected two of the proposed law's key provisions. The two cabinet departments said they "strongly oppose" a provision that authorizes DOJ to pursue civil cases against alleged copyright infringers, rather than limiting government involvement to criminal cases. They also rejected a plan to create an "IP Czar" within the executive office of the president to coordinate IP enforcement across government agencies.

From the letter:

We are deeply concerned that the proposed legislation will undermine existing intellectual property enforcement efforts by diminishing the effective use of limited criminal enforcement resources and creating unnecessary bureaucracy. It will also improperly micro-manage the internal organization of the Executive Branch. Accordingly, as outlined below, we strongly oppose S. 3325 as reported out of Committee on September 15, 2008.

The provision to give DOJ the authority to bring civil copyright cases has been a source of controversy around the bill from the beginning. In their letter the Justice and Commerce Departments echoed the concern voiced by the bill's critics that it would effectively turn DOJ into a private enforcement arm of copyright owners at the public's expense.

First, civil copyright enforcement has always been the responsibility and prerogative of private copyright holders, and U.S. law already provides them with effective legal tools to protect their rights: they can obtain injunctions...These tools also provide strong incentives for all copyright holders, including individual copyright holders and small businesses not represented by trade groups or industry organizations, to enforce their rights.

Second, Title 1's departure from the settled framework above could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry.

Third, the Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions, which only the Department of Justice may bring.

As for the IP Czar:

While the Administration has been a long time supporter of strong inter-agency coordination -- and is willing to work with the Committee on this topic -- the statutory creation of an EOP coordinator with the duties described in the bill constitutes a legislative intrusion into the internal structure and composition of the President's Administration. This provision is therefore objectionable on constitutional separation of powers grounds.

Although the Administration's concerns with the two provisions were known, the timing of the letter surprised the bill's supporters. The bill has been approved by the Judiciary Committee and is currently calendared for a vote by the full Senate.

"It's kind of late in the game to be sending a letter like that," one supporter said.

As it happened, the letter was sent while Leahy was speaking at a "copyright showcase" on Capitol Hill organized by the Copyright Alliance, a coalition of companies and trade associations representing major copyright industries.

"I expect the Senate to adjourn by this weekend, or maybe early next week," Leahy said. "We're still trying to break a few filibusters and of course now we have the financial crisis to deal with. But I would like to see us pass this bill."

Speaking to Media Wonk after his remarks, Leahy bristled at the push back from the Administration.

"That's wrong; they're wrong," Leahy said. "You can't talk tough on crime and then do nothing about it. I can't accept that, that's unacceptable."

Asked whether the letter is likely to have any impact on whether the bill goes forward Leahy said, "In the short term maybe it will, in the long term, it won't."

Critics of the bill had praise for the Administration's position. “We are pleased that the Justice and Commerce departments agree with us that it would be a mistake to give the Justice Department the authority to pursue civil suits in copyright cases," Public Knowledge president Gigi Sohn said in a statement. “We hope that the sponsors of the bill will take these views seriously and will forgo action on the legislation for the foreseeable future.”

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