The Department of Justice has authored legislation designed to further criminalize intellectual property pirates, including the "intent" to commit piracy.The Department of Justice has authored legislation designed to further criminalize intellectual property pirates, including the "intent" to commit piracy.
As part of the Strategy Targeting Organized Piracy (STOP) initiative, Attorney General Alberto R. Gonzales announced that the Department of Justice has sent to Congress the Intellectual Property Protection Act of 2005, a piece of legislation designed to crack down on piracy.
"This legislative package, if enacted, would strengthen penalties for repeat copyright criminals, expand criminal intellectual property protection, and add critical investigative tools for both criminal and civil enforcement," Gonzales said, in a speech delivered to the U.S. Chamber Of Commerce's "'STOP'ing the Fakes" Anti-counterfeiting Summit last week.
"For example, our legislative proposals implement broad reforms that ensure the ability to forfeit property – including illicit proceeds – derived from or used in the commission of criminal intellectual property offenses," Gonzales added. "We also propose to strengthen restitution provisions for victim companies and rights holders, in order to provide maximum protection for those who suffer most from these crimes. And we propose to make clear that exporting infringing goods is the same as importing them…and should be punished accordingly. Every member of the global economy has a responsibility to keep counterfeit goods out of the global market."
The provisions of the act add crucial clauses to the portions of the U.S. Code which apply to the criminal penalties for breaking copyright.
According to the existing U.S. Code -- the compendium of laws which govern the country -- criminal penalties only exist if a person actually infringes a copyright for commerical or private gain. Criminal penalties also apply if a person simply copies, by electronic or other means, one or more works worth at least $1,000. Existing law states that evidence of the copying or reproduction is not enough to establish "willful infringement".
The IPPA would dramtically widen the concept of "willful infringement". Rather than applying the penalties to someone who infringes on a copyright, the act would criminalize the "intent to infringe" the copyright as well. (Specifically, the act would add the clause "or attempts to infringe" before "a copyright" under Section 506(a)(1) of title 17 of the United States Code.)
That statement set off warning bells at Public Knowledge, an advocacy group monitoring IP law.
"Public Knowledge supports the enforcement of copyright law and the protection of copyright holders' rights," the group said. "We are concerned that the Justice Department's (DoJ) proposal attempts to enforce copyright law in ways it has never before been enforced. Making the "attempt" at copyright infringement the same as actual infringement puts it in the same category as far more serious criminal offenses."
Moreover, the legislation would also expand the scope of property that could be forfeited or impounded in the scope of an investigation. Currrently, when a person is convicted of breaching copyright, a judge has the option to seize the offending materials.
Under the proposed legislation, the law would also permit "any property constituting or derived from any proceeds" from the copyright violation, as well as "any property used, or intended to be used, in any manner or part, to commit or facilitate the commission of a violation" including "electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies".
The bill would also permit copyright holders to file an infringement calim before the copyright was actually approved, a point that Public Knowledge also took issue with.
"Current copyright law requires a copyrighted work to be registered with the U.S. Copyright Office before an infringement suit can be filed--regardless of whether it is a civil or criminal suit," the group said in a statement. "While this change might increase the Department's ability to apprehend copyright infringers, it would have an overall negative effect by discouraging copyright registration."
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