Not satisfied with the tools currently available under the law, large content owners are urging Congress to ratchet up enforcement. Congress has introduced two bills, H.R. 4279 and S.3325, that would, among other things, increase penalties for copyright infringement and provide increased resources to law enforcement. The U.S. government is also negotiating an international agreement called the Anti-Counterfeiting Trade Agreement, to possibly achieve similar results on the international front.
Both bills would dramatically expand current law’s forfeiture provisions that encompass devices used in infringement to include devices intended to be used in infringement. The Senate bill would also extend to devices intended to be used to circumvent digital locks. While application of such provisions against large scale commercial enterprises might seem reasonable, both bills could also allow a family’s general-purpose computer, used by one member to download music, to be seized by the government as a device intended for infringement. Additionally, both bills would institute new civil forfeiture provisions that would allow forfeiture without the heightened burden of proof that is currently required in criminal cases.
In addition to the forfeiture provisions, the bills would also amend the current law requirement that works be registered before an action is brought and allow criminal actions even where the owner does not register the copyright. It is puzzling that such a provision is present in the bills given that the movie and music industries, which would primarily benefit from criminal enforcement, already register their works.
H.R. 4279 has passed the House and is currently up for consideration by the Senate. The Senate bill S.3325 was recently introduced in the Judiciary Committee. We will keep you updated about their progress.
The United States Trade Representative (USTR) is leading negotiations on behalf of the U.S. government to enact an international agreement called the Anti-Counterfeiting Trade Agreement (ACTA). Other countries involved in the negotiations are Japan, South Korea, Canada, Mexico, Australia, New Zealand and the countries of the European Union. The stated goal of the agreement is the international enforcement of strong intellectual property rights (that includes copyright) through increased cooperation among international government agencies. ACTA does not exist yet, though its ongoing discussions are confirmed by all the participating governments (see USTR fact sheet).
However, public interest advocates fear that the treaty would require member countries to adopt more stringent enforcement practices including those aimed at preventing Internet piracy, and increasing responsibilities of intermediaries such as ISPs in preventing infringement. None of these fears can be confirmed or denied because the treaty is being negotiated in secret. Public interest groups, including Public Knowledge are urging the US government to negotiate the treaty in an open and democratic manner so that all concerned can have their voice heard.