Posted by Joseph Addiego

This week it was reported that a proposed law dubbed the Intellectual Property Protection Act of 2006 is set to be introduced to Congress by Rep. Lamar Smith, who serves as the chairman of the House Subcommittee on Courts, the Internet, and Intellectual Property, which has jurisdiction over copyright law and information technology, among other things. The proposed bill aims to put more teeth into anti-piracy laws by expanding the types of punishable criminal offenses and their related penalties. For example, attempted criminal piracy, even if the attempt fails, would be a punishable offense as long as the attempt was willful. In addition, the punishment for certain criminal copyright offenses would be doubled.

Further, Section 17 of the anticipated bill, entitled “Improved Investigative and Forensic Resources for Enforcement of Laws related to Intellectual Property Crimes,” proposes to establish and fund — to the tune of $12 million per year — a new “operational unit” of the FBI to investigate crimes “related to the theft of intellectual property,” and also “to investigate and prosecute international organized crime syndicates” engaged in the theft of intellectual property. The IPPA further would authorize the use of wiretaps for such investigations, and it would add to the list of items subject to forfeiture “any property used, or intended to be used, in any manner or part to commit or facilitate the commission” of a civil copyright offense.

The proposed IPPA also includes certain provisions relating to civil enforcement that may garner criticisms from a privacy and security perspective. For instance, it purports to add to the list of available civil remedies for infringement the impounding of any “records documenting the manufacture, sale, or receipt of items involved” in a copyright violation. The scope of this forfeiture provision is likely to raise privacy questions and concerns. For example, are the logs relating to an ISP’s server that is used by an individual to transmit counterfeit software without the ISP’s knowledge subject to impound, even if the ISP is unaware of and not complicit in the transmission? Similarly, must a web host turn over its server logs and related files if its server was unknowingly used by a user to sell counterfeit software, even if those logs contain information relating to innocent by-stander third parties? The IPPA does require that a protective order be put in place in these instances, but should such third party information be disclosed to the copyright enforcer in the first place?

Expect these and other questions to be debated after this proposed law is introduced.