House committee passes 'gluttonous' Pro IP Act

So, we have a credit crisis, a foreclosure crisis, a full-blown recession and no plans on how to get out of Iraq or how to create a regional solution. So what do we need? How about an intellectual property czar and stiffer penalties for unauthorized music downloading? Welcome to the priorities of congressional Democrats. The Washington Post reports that a House committee headed by Rep. John Conyers (D-Mich) has passed the Pro IP Act, which now heads to the House floor. A Senate version, spearheaded by Sen. Patrick Leahy (D-Vt.) is in committee.

In addition to creating the position of IP czar, the bill would amend federal copyright law to add resources to the fight against piracy and raise the ceiling on damages that could be awarded by a civil court to a rights-holder whose work had been pirated.

Naturally, tech and public policy groups are opposed to this Hollywood-inspired absurdity, but guess who else hates it: the Justice Department.

Establishing such an office would undermine the traditional independence of the Department of Justice in criminal enforcement matters," department spokesman Peter Carr wrote in an e-mail yesterday. "Establishing such an office in [the White House] would codify precisely the type of political interference in the independent exercise of DOJ prosecutorial judgment that many members of Congress and senators have alleged over the last couple years.

The chief backer of the bill? NBC Universal's Jeff Zucker, who crowed: "This is such an important step in combating this incredibly serious piracy and counterfeiting problem that's getting worse, not better." Zucker likes, although you may not, provisions like this one:

Section 504(c)(1) of title 17, United States Code, is amended by striking the second sentence and inserting the following: `A copyright owner is entitled to recover statutory damages for each copyrighted work sued upon that is found to be infringed. The court may make either one or multiple awards of statutory damages with respect to infringement of a compilation, or of works that were lawfully included in a compilation, or a derivative work and any preexisting works upon which it is based. In making a decision on the awarding of such damages, the court may consider any facts it finds relevant relating to the infringed works and the infringing conduct, including whether the infringed works are distinct works having independent economic value.'.

Flip back to the discussion on the Howell decision and its impact on the damages copyright holders can claim, and you can see why Hollywood wants these crazy fines. This William Patry blog post on the bill from back in December nails it:

This provision is one of the most gluttonous in the whole bill. It seeks to expand radically the amount of statutory damages that can be recovered, and in cases where there are zero actual damages. The provision is intended to benefit the record industry but will have terrible consequences for many others; the provision has nothing to do with piracy and counterfeiting; instead it seeks to undo rulings in the 2000 MP3.com litigation, a decidedly non-piracy or counterfeiting case, instead involving the use of digital storage lockers. Under the original MP3.com decision, where a CD had twelve tracks, there was only one award of statutory damages possible. Under the bill, there may be 25: there would be 12 for each track on the sound recording, 1 for the sound recording as a whole, and 12 for each musical composition. Under this approach, for one CD the minimum award for non-innocent infringement must be $18,750, for a CD that sells in some stores at an inflated price of $18.99 and may be had for much less from amazon.com or iTunes. The maximum amount of $150,000 then becomes three million, seven hundred and fifty thousand dollars per CD.