Enforcemant of the IPR Act, 2008

The Enforcement of the Intellectual Property Rights Act, 2008 is causing substantial unrest. The Enforcement of IPR Act gives the government authority to enforce civil suits against copyright infringers. This Act takes its roots for language and identity from Senator Leahy's PRO-IP/PIRATE ACT. His justification for Government Authority in instituting civil suits for copyright infringement is the necessity to avoid the severe consequences that result from criminal sanctions. In essense, it's highlights are:

"Title I -This title gives the Attorney General authority to bring civil actions against anyone whose conduct constitutes criminal copyright infringement.

Title II- Enhancements to Civil Intellectual Property Laws - More specifically, it amends the Copyright Act so that registration of a copyrighted work is a requirement before bringing a civil infringement suit, but not a criminal one. This title also allows seizing documents and records in civil infringement actions concerning the manufacture, sale, or receipt of things involved in those violations.

Title III - Enhancements to Criminal Intellectual Property Laws. The general forfeiture provision is also improved in two ways: it does not permit forfeiting property used in an offense unless it is owned or predominantly controlled by the violator or a conspirator, and it requires the government to establish a substantial connection between the property and the violation."

The opposers have requested revisiting this Act so that certain issues may be addressed in a more fair manner. The details are enumerated in the letter and the significant highlights are as follows:

1. DOJ does not require a right to pursue copyright infringers because "Movie and television producers, software publishers, music publishers, and print publishers all have their own enforcement programs."
2. This Act deposses a defendant from protections he has in a criminal action.
3. The burden of proof for the government is "preponderance of evidence"- a standard too low.
4. The defendant is not eligible to receive free legal representation
5. S.3325, Title III exposes property of "unaffiliated, non-infringing thrid parties" to forfeiture (read online service providers). This expands the normal criteria i.e. forfeture of property requires ownership of infringing property or predominant control.
6. What is the limit on forfeiture on such third party sites. Does it expose a "virtual bystander's" material to such forfeiture?
7. Forfeiture is also imposed for technological circumvention. This adds fuel to the fire for an existent controvery on imposition of potential liability for technological circumvention in cases of fair-use.

Opposers include the EFF, American Association of Law Libraries, Consumer Union, IP Justice, Medical Library Assocition, to name a few.

It is a bit frightening. Substantial contentions have been raised. A tax payer's money being used to "confer "an enormous gift of federal resources to large copyright owners" (See letter) is scary, but it has been correctly said that it might also be a real deterrent in promoting the free-wheeling spirit of innovation. One's brainstorming and experimentation could land you in a gladiator style scenario. You have your hopes and dreams and they have the big bucks to hound you down to submission. Try winning against that!

However, what concerns me more is the broadness of the forfeiture provisions. Hmm....