[Libs-Or] [Fwd: [alacoun] Letter to Congress that ALA Signed Onto]
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.
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.
American Association of Law Libraries
American Library Association
Consumer Federation of America
Digital Future Coalition
Electronic Frontier Foundation
Knowledge Ecology International
Medical Library Association
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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