Last week the House subcommittee with jurisdiction over intellectual property issues held a hearing on H.R. 4279, an I.P. enforcement bill introduced last month by Judiciary Committee Chairman John Conyers.

CDT does not have any problem with efforts to provide additional resources for I.P. enforcement. Adding more prosecutors tasked or trained for I.P. enforcement is fine, so is reorganization aimed at providing better coordination. And efforts to address the tricky problem of foreign I.P. enforcement–such as the bill’s provisions to deploy I.P. attachés and enforcement coordinators to key embassies and countries– make sense.

It was clear from the hearing, however, that section 104 of the bill is highly controversial. Section 104 would increase potential damages in cases involving works in a compilation, by allowing courts to treat the different items in a compilation as separate works eligible for separate damages. So infringing a website or a software program with multiple component parts could end up getting treated as multiple violations, not just one.

This provision seems just plain unnecessary. Statutory damages already can get sky-high. Moreover, courts already have ample discretion to adjust damages to reflect whatever factors they consider relevant. So the impact on actual damages assessed against actual pirates in court would likely be nil. In practice, the main effect of section 104 would be to increase the theoretical maximum damage amount that a rights holder can wave around when trying to exert pressure for settlement of a legitimate business or legal dispute. That may hurt innovation, because risk-averse innovators may be intimidated from standing their ground even when their legal position is relatively strong.

The hearing touched on a few other parts of the bill. For example, there was some debate about the bill’s proposal to eliminate copyright registration as a prerequisite to criminal enforcement against infringement.

But I was struck by how little the hearing focused on the bill’s provisions calling for a fundamental restructuring of the federal government’s I.P. enforcement structure. The bill would create a new division within the DoJ devoted solely to I.P.; the new division would be on par organizationally with existing units such as the Criminal Division, Civil Division, Antitrust Division, and Civil Rights Division. And it would create a new “United States Intellectual Property Enforcement Representative,” modeled on the U.S. Trade Representative, within the Executive Office of the President. These are major institutional changes, and the DoJ witness at the hearing cautioned against them.

At a minimum, the pros and cons of this kind of large-scale reorganization merit careful scrutiny as this bill moves forward.

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This entry was posted on Tuesday, December 18th, 2007 at 11:18 am and is filed under CDT, Digital Copyright. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.