DoJ Opposes Controversial Copyright Bill, Calling One Provision Unconstitutional

Andrew Albanese -- Library Journal, 9/25/2008 1:13:00 PM

• Lawyers object to civil suits
• Bill could pass before Congress adjourns
• Opposed by librarians , copyright experts, tech industry

The Department of Justice (DoJ) this week voiced strong opposition to the Senate version of the PRO IP Act, a controversial copyright bill that would greatly expand enforcement and penalties for copyright infringement. The bill, S. 3325, the Enforcement of Intellectual Property Act of 2008, passed the Senate Judiciary Committee easily this week, meaning it is now clear for a floor vote—and possibly headed for the president’s desk. The House version passed in May, 2008. 

In a letter to Senate Judiciary Committee chairman Patrick Leahy and Ranking Member Arlen Specter, DoJ attorneys said expressed “strong and significant concerns,” and said the agency could not support passage of the bill as written. The letter was also signed by the General Counsel of the U.S. Department of Commerce. Chief among the DoJ’s concern were two controversial provisions: Title I, which would authorize DoJ to pursue civil actions for copyright infringement and to collect restitution and damages and distribute those awards to copyright owners; and Title IV, a provision that would create a copyright position in the president’s office.

At press time it remained unclear whether the bill would make it to a floor vote. Although Congress will most certainly not adjourn as originally scheduled on September 26, legislative priorities are now dominated by the massive $700 billion bailout of the banking and credit industries.

"Pro bono" lawyers for industry?

In its letter, DoJ focused its opposition only on Titles I and IV. “Civil copyright enforcement has always been the responsibility and prerogative of private copyright holders, and U.S. law already provides them with effective legal tools to protect their rights,” the letter noted, regarding Title I, adding that the bill as written would result in DoJ prosecutors “serving as pro bono lawyers” for private copyright holders.

“In effect, taxpayer-supported lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry,” the letter asserted. Taking on select civil actions, DoJ said, would come at the expense of covering criminal actions—the department’s exclusive mandate. “The Department of Justice should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil enforcement provisions." 

DoJ attorneys had a simpler opposition to Title IV, which would create the first “U.S. Intellectual Property Enforcement Coordinator” position, a cabinet-level presidential appointee that would develop and coordinate IP policy. The statutory creation of that position, DoJ said, “constitutes a legislative intrusion into the internal structure and composition of the President’s Administration…and is objectionable on constitutional separation of powers grounds.”

Libraies, scholars oppose

In a letter to the Senators earlier this month, the major library organizations reiterated their opposition to the bill, concerns consistent with the DoJ’s. The major library groups called the bill an “enormous gift of federal resources to large copyright owners,” and  noted that the recording industry has “threatened or filed over 30,000 lawsuits against individual consumers” in recent years, raising the specter of taxpayers assuming the cost of the RIAA’s controversial legal blitz against music downloads—or, perhaps, Viacom’s $1 billion suit against Google. 

Although heavily lobbied for and supported by the entertainment industry—including the Association of American Publishers (AAP)—the bill faces significant opposition from many of the nation’s top intellectual property scholars, as well as the technology sector and the library community. 

Opponents noted that the bill would lower the bar for government legal action, because there is a lower standard for burden of proof in civil cases—civil cases require only a preponderance evidence vs. the criminal standard for conviction, beyond a reasonable doubt.