PRO IP = Pro-Government Enforcement
On October 13th of this year President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO IP). This bill enhances the remedies available in both criminal and civil Intellectual Property law. One of the biggest changes the bill makes is the creation of the Intellectual Property Enforcement Coordinator. The IPEC serves within the Executive Office of the President and is in charge of an inter-agency advisory committee that will develop a Joint Strategic Plan which will help to “reduce the number of counterfeited and infringing good in the domestic and international supply chain,” identify any weaknesses in the system for stopping these kinds of goods, ensure that information concerning these types of goods are shared between agencies and work overseas to enforce IP rights. This position and committee seems to bring the federal government as a whole into a more active role in investigating counterfeited and infringing goods. The Joint Strategic Plan seeks to keep federal, state and local agents more informed about Intellectual Property issues and help strengthen the enforcement of IP rights. This sounds like a good thing right? It could be very good for IP law but the bill also has the potential for extreme over enforcement.
Take a look at the provisions in the bill for the seizing and forfeiture of goods. This allows the forfeiture of:
‘‘(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.‘‘(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).‘‘(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).
This extends the governments reach past what you are actually using to infringe and allows the government to take items that are only tangentially related to the infringement. The government can take or have forfeited the same items regardless of whether the case against a person is civil or criminal. If you have put an infringing item on the internet to be downloaded by others, you computer can be taken and any items that the infringing title is on can also be taken. The forfeiture provisions in the title extend what the government can possibly take, it will take time to see how the government will use these provisions but the sheer breadth of the reach is stunning.
The bill also sets forth appropriations to state and local law enforcement agencies for the purpose of informing and educating them on intellectual property issues, putting together task forces for the purpose if investigating IP cases, to facilitate the sharing of information about Intellectual Property issues from the Federal agencies, and reimbursing costs incurred through enforcement. The amount appropriated for this is $25 million a year for each year between 2009 and 2013. Federally, an additional $10 million a year for the same time period is appropriated for improving the investigative and forensic resources regarding the enforcement of law relating to IP. In addition to this an addition $10 million is appropriated to the Director of the FBI and another $10 million is appropriated to the Attorney General for the Criminal Division of the Department of Justice. These extra amounts are given for the hiring of new law enforcement agents and for their training, and is also to be used for equipping them with advanced tools for forensic science and expert computer forensic assistance. These appropriations tend to show that in the near future the government plans to take a more active role in the enforcement of Intellectual Property rights. Depending on how zealous the government is in its enforcement this could mean that larger infringing networks could be shut down, it could also mean that in addition to shutting down those people that commit large scale infringement for profit, more individuals will be prosecuted criminally for infringement.
Civil remedies have long been the way that Intellectual Property holders have gone about protecting their rights. The PRO IP bill extends the criminal remedies available to stop infringement and gives the government a more active role in policing intellectual property rights. This could have a number effects on the enforcement of the Intellectual Property rights. First, this bill will most likely mean that the number of counterfeit and infringing products that will be available in the US market will be lessened as these types of goods will be seized and the suppliers shut down. It could mean that Intellectual Property holders could let law enforcement agencies take the front of the battle to protect their rights; they could instead of pursuing civil litigation let the government know about the infringement and take care of it. More likely with Intellectual Property holders being concerned with not only stopping the infringement but also getting money from the infringers, it will mean that there will be double enforcement, where IP holders will let the government know about the infringement and will pursue civil remedies as well. This could mean that infringers could face criminal charges and fines, be shut down and have to pay the Intellectual Property holder for their damages. The bill has the possibility for extreme action to be taken against infringers, but it will take time and the courts to decide what the proper amount of enforcement will be.