[Libs-Or] [Fwd: [alacoun] Letter to Congress that ALA Signed Onto]

Suzanne Sager bvss at pdx.edu
Thu Sep 11 14:12:18 PDT 2008


-------- Original Message --------
Subject: 	[alacoun] Letter to Congress that ALA Signed Onto
Date: 	Thu, 11 Sep 2008 17:08:39 -0400
From: 	Emily Sheketoff <esheketoff at alawash.org>
To: 	ALA Council <alacoun at ala.org>
CC: 	<alacol2 at ala.org>

*_Re: Concerns Regarding S. 3325, the Enforcement of Intellectual 
Property Rights Act of 2008_*

*_ _*

*_ _*

Dear Senator «Lastname»:


The undersigned groups write to express our concerns with S. 3325, the 
Enforcement of Intellectual Property Rights Act of 2008, soon to be 
marked up in the Committee on the Judiciary. While enforcing IP rights 
is necessary to ensuring the progress of science and the useful arts, an 
unbalanced approach to enforcement would lead to unintended harms and 
impede that progress. Several of the provisions contained within S. 3325 
threaten such an imbalance.

* *

* *

*Civil Enforcement by DOJ*


Section 101 of the bill allows the Attorney General to bring a civil 
suit against alleged copyright infringers in lieu of a criminal action. 
Granting the Attorney General this authority is unwarranted. The 
Attorney General currently possesses the power to bring criminal actions 
against the worst infringers, while civil remedies are already fully and 
freely available to copyright holders.


Section 101 would be an enormous gift of federal resources to large 
copyright owners with no demonstration that the copyright owners are 
having difficulties enforcing their own rights. For example, the 
recording industry has threatened or filed over 30,000 lawsuits against 
individual consumers. Movie and television producers, software 
publishers, music publishers, and print publishers all have their own 
enforcement programs.  There is absolutely no reason for the federal 
government to assume this private enforcement role.


Moreover, in a civil action brought by the government, the defendant 
loses many of the protections he possesses in a criminal action.  The 
government?s burden of proof is lower ? preponderance of evidence rather 
than beyond reasonable doubt. Additionally, the defendant is not 
eligible for free legal representation if necessary. Nor does the bill 
adequately balance this shift against the accused. The proposed offset 
for civil damages is limited to certain cases, and the bill also 
explicitly permits the United States and private parties to exact 
further civil or criminal penalties in addition to those imposed by the 
Attorney General's civil suit.


Given its potential harms, section 101's inclusion should be 
reconsidered. At the very least, substantial examination is needed to 
assess its unintended, adverse consequences.

* *

* *

*Forfeiture Provisions*


Title III of S. 3325 expands both the civil and criminal forfeiture 
provisions of several areas of IP and related law. Unlike similar 
provisions in H.R. 4279, the civil forfeiture provisions here do not 
require that the seized property be owned or predominantly controlled by 
the infringer. Given the distributed nature of online content and 
Internet communications, this provision subjects the property of 
unaffiliated, noninfringing third parties, such as online service 
providers, to forfeiture.


At least two major questions are left unanswered by these provisions. 
First, to what extent is the information on seized devices reached by 
the forfeiture? For instance, if an information storage device such as a 
server is forfeited, is the proprietary content (including copyrighted 
content) on that server similarly forfeit? Virtual bystanders storing 
copyrighted material on the same server as an infringer should not have 
their intellectual property seized by the government due to the 
operation of a pro-IP law.


Second, what rights are implicated by accessing the information stored 
on seized devices? If an information storage device such as a server is 
forfeited, does the government require a search warrant to review the 
contents of the server? If not, then forfeiture and impoundment could be 
used as a mechanism to circumvent the warrant requirement.


Furthermore, S. 3325 authorizes forfeiture for the circumvention of 
technological protection measures. This provision only serves to 
heighten the ongoing controversy over anti-circumvention 
provisions?which currently may penalize users who are circumventing 
protection measures to make fair or other lawful uses of copyrighted works.



*Impounding of Records*

* *

Section 202 of the bill allows the impounding of business records 
associated with an alleged infringement pending trial. By allowing the 
impoundment of the actual records soon after the filing of a complaint, 
this amendment deprives the defendant the ability to carry on its 
business before a decision of the merits of the complaint?before any 
injunction is issued or any discovery undertaken. Moreover, without the 
records, the defendant might not be able adequately to prepare a 
defense.  S. 3325 is worse than the parallel provision in H.R. 4279 
because the Senate bill makes a protective order for these records 
discretionary, while the House bill makes the protective order mandatory


The expeditious procedures currently in 17 U.S.C. § 503 may be necessary 
to prevent potentially infringing materials from entering the market. 
However, expanding the section's scope to include records does nothing 
to further that goal, while circumventing established discovery procedures.


We look forward to working with the Committee to address our concerns 
with S. 3325.



Respectfully submitted,


American Association of Law Libraries

American Library Association

Consumer Federation of America

Consumers Union

Digital Future Coalition

Electronic Frontier Foundation

Essential Action

IP Justice

Knowledge Ecology International

Medical Library Association

Public Knowledge

Special Libraries Association


cc: Members of the Senate Committee on the Judiciary


Portland State University logo

Suzanne L. Sager
Library East, Cataloging
Portland State University

sagers at pdx.edu

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