Titled the Enforcement of Intellectual Property Rights Act of 2008, the bill (S3325) would authorise the Attorney General to enforce civil copyright laws, enhance civil IP laws, provide for coordination and strategic planning of federal efforts against counterfeiting and piracy, and increase resources for key programmes within the Department of Justice to combat IP theft.

It was introduced in July 2008 by Senator Patrick Leahy and Ranking Member Arlen Specter and was approved Thursday by a vote of 14 to 4.
The bill mimics the House of Representatives’ Prioritizing Resources and Organization for Intellectual Property Act of 2007 (Pro-IP Act), which was passed by the US House Judiciary Committee in April. That bill was introduced by John Conyers Jr, chairman of the House Judiciary Committee, in December last year along with 17 other co-sponsors.

Before its passage, the Pro-IP Act was amended to remove a provision that would have awarded copyright owners multiple statutory damages in cases where an individual was found to have made copies of copyrighted material. A number of academics had criticized that proposal, which would, for example, have allowed the recording industry to collect damages for each track that was copied from a CD.

Similar concerns were raised by groups such as the Electronic Frontier Foundation (EFF) in response to the Senate bill, which includes equally controversial proposals. For instance, Title I of the bill, “Authorization of Civil Copyright Enforcement by Attorney General”, would allow the DOJ to bring civil actions “against anyone whose conduct constitutes criminal copyright infringement”. This section of the bill also borrows from Senator Leahy’s Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act, which has been passed three times by the Senate.

The EFF dubbed such provisions “alarming” and in a July release said:

Traditionally, [civil] offenses can and will be pursued by the parties who believe they have actually been harmed, namely the copyright owners. The real ‘problem’ may be that some so-called ‘offenses’ can’t be proven beyond a reasonable doubt, the standard for any crime. This new provision would allow the AG to sidestep that high burden of proof – a burden that gives the average citizen an important measure of protection from the overwhelming power of the government.

The Attorney General of the United States surely has better things to do than serving as muscle for the entertainment industry, especially when that industry is clearly well-capable of enforcing its copyrights on its own.

Several other contentious provisions were amended before the bill’s passage last week.

According to a release distributed by Senator Leahy, IP contributes more than $5 trillion a year to the US economy, with American businesses losing $250 billion each year to IP theft.

But the EFF characterises such facts as misleading: “Whether or not you believe the entertainment industry’s claims about the extent of the piracy problem, there is no reason the American taxpayer should be picking up Hollywood’s legal costs while movie studios are celebrating record box office returns and record-breaking single-title revenues.”