The Pro-Intellectual Property Act of 2008: Copyright and Trademark Enforcement
Nearly a year ago I wrote an article outlining copyright and trademark laws hoping it would prove to be useful information for all bloggers. This past October, copyright and trademark laws were revised to give the federal government virtually complete control over enforcement.
Please be aware there contains a lot of legal language that the average person may not fully understand. But what can be gleaned from the text is how the new laws will give bloggers and web site owners greater protection and will afford more opportunities to seek remedies against those who commit copyright or trademark infringement.
On October 13, President Bush signed into law the Prioritizing Resources and Organization of Intellectual Property (PRO-IP) Act. The bill was introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT).
The legislation was opposed by the Department of Justice, with the main objection being the DOJ will now have the power to bring civil actions and is forced to turn the proceeds over to private industry.
Essentially, what was once a private system of enforcing copyright and trademark laws – mostly through civil litigation – now becomes a government function.
The DOJ also felt the appointment of an Intellectual Property Director with the duties described in the legislation would violate the principle of separation of powers between the executive and legislative branches of government.
The text of the DOJs opposition to the bill can be found here (PDF).
Below is the main verbiage pertaining to the bill.
Title I
Title I enhances civil intellectual property rights laws and improves remedies. First, it adds a harmless error provision to the registration requirement for instituting a suit, so that an infringer cannot avoid liability based on a harmless error in a registration.
Second, it gives copyright owners the same rights as trademark owners to impound records documenting the infringement, while including protections to ensure a court will issue an appropriate protective order.
Third, Title I increases statutory damages in counterfeiting cases and applies them not only to those who intentionally use a counterfeit mark, but also to those who supply goods necessary to the commission of a violation of the Trademark Act, if they intend that the recipient of the goods or services would put the goods or services to use in committing that violation.
Finally, Title I applies the copyright laws not only to imported goods, but also to exported items.
Title II
Title II improves and harmonizes the forfeiture laws governing intellectual property rights violations. It creates a new forfeiture section for both civil and criminal forfeiture, building off the model in the Protecting American Goods and Services Act passed in the 109th Congress.
It protects against the possibility that third party information may be disclosed by including protections to ensure a court will issue an appropriate protective order with respect to information found on items seized.
Here is the text of the Senate version of the legislation (S.3325).
From the private litigant’s perspective, note that 17 U.S.C. Section 411 is amended to permit infringements where the registration has certain inaccuracies, 17 U.S.C. Section 503 now permits seizure of the books and records of an infringer (subject to a mandatory court-issued protective order), a weapon that trademark plaintiffs have long had.
For trademark cases, 15 U.S.C. 1117 has been amended to enhance statutory damages and to treble damages plus attorneys fees and prejudgment interest. Section 602 is amended to make exporting infringing goods a violation.
Copyright and trademark protection is an area in which federal law has completely preempted state law. Copyright and trademark laws, once thought to lack any real punch, now have some really sharp teeth.
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