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Bush Signs Intellectual Property Enforcement Act

But Adult Will Still Be On Its Own In Fighting Piracy

Bush Signs Intellectual Property Enforcement Act
WASHINGTON - On Monday, after having expressed several reservations about the bill, President Bush signed S. 3325, the Prioritizing Resources and Organization for Intellectual Property Act, which stiffens penalties for piracy of intellectual property and copyright infringement in all media - even patents on such "property" as genetically-altered corn - and creates a cabinet-level position of "Intellectual Property Enforcement Coordinator" - in other words, a piracy czar.

But despite its legitimate interest in fighting video piracy, and despite the fact that the adult industry's potential financial stake in such matters exceeds that of the music industry and all sports franchises combined, one commentator doubts that adult will have anywhere near the access to the coordinator that Hollywood and the recording industry will.

"Anything that reinforces intellectual property protection is generally good for the adult industry, but this particular bill is really designed to protect big business interests and will have no immediate impact on the adult industry," said First Amendment attorney Lawrence G. Walters. "I can't imagine Justice Department officials or presidential cabinet officials, as required in this bill, going out and using their government resources to pursue pirates or infringers on adult industry content; it's just not going to happen. So the real world impact on the adult industry will be negligible, but it will reinforce, I suppose, to the public at large, that intellectual property theft is a crime, it's a serious matter; it's not just something that everybody does and gets away with; it's something that there are increasingly stringent federal laws that are designed to prevent and punish,  so in that respect, given the incredible and mounting piracy problem in the adult industry, it's a positive thing."

Indeed, S. 3325 increases all of the penalties for piracy and copyright infringement, doubling fines for the willful use of a counterfeit mark to $2 million "per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just," and empowering law enforcement officials to seize not only the counterfeit (pirated) materials themselves, but also "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission of [the] offense" and "[a]ny property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of [the] offense." And that's in addition to the usual criminal forfeiture counts.

The new law also adds "infringement of copyrighted works over the Internet" as a "computer crime" under the Computer Crime Enforcement Act (42 U.S.C. §3713), although other sections of the law already recognize that connection.

"The DMCA, the Digital Millennium Copyright Act,  includes provisions related to intellectual property enforcement and theft and so forth," Walters explained, "but what they're doing is, they're lumping in intellectual theft with computer crimes, and making it potentially a more serious offense. It's a new way to go about it. Arguably, the computer crime statute may very well already have been implicated when a computer was used to violate somebody's intellectual property rights; you could make that argument, but what they're doing is making it much clearer now that it applies to intellectual property theft using a computer."

How important is the new Act? Sec. 503 of the bill notes that, "It is the sense of Congress that ... terrorists and organized crime utilize piracy, counterfeiting, and infringement to fund some of their activities." That must be why Sec. 403 authorizes $10 million each to the Director of the FBI and the Attorney General for the Criminal Division of the Department of Justice for each of the fiscal years 2009 through 2013 "to investigate and prosecute intellectual property crimes and other criminal activity involving computers." The bill also requires the FBI to "ensure that there are at least 10 additional operational agents" assigned to the Computer Crime and Intellectual Property Section of the Justice Department, and "at least 2 Assistant United States Attorneys responsible for investigating and prosecuting computer hacking or intellectual property crimes."

Or is terrorism and organized crime the reason?

"I think Sony Entertainment is probably going to be the largest beneficiary of this bill," Walters said. "And that brings up another important point: The odd part about this bill is, we're seeing federal resources being devoted to protecting and bringing claims on behalf of industries that can well afford to bring them themselves. It's not as if Viacom and all these large industry giants have any problem pursuing intellectual property theft or the bootleg copyright violations that are going on; they do it all the time. Now, they'd always like more and better assistance in doing so, but there are certainly others who are not in that same kind of position as these massive companies who have legitimate claims and legitimate beefs concerning violations of their rights, and we're not seeing that kind of attention being paid to those individuals - such as those who have had their civil rights violated or harassment in the workplace and so forth - so it's interesting from that standpoint."

PC World magazine noted that some provisions in the original version of the bill were later struck because they could have resulted in "Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources."

"I think that's a legitimate criticism," Walters said.

So what are the chances that the adult industry will be able to take advantage of this excess of protection and funding?

"I suppose it will depend to some extent on who the appointee is, and who appoints that person," Walters said. "I would think that no one will be appointed until the next administration, which could very well be more open-minded, more progressive than the current administration, but from the standpoint of common sense, and just given the political realities of the time, it will be very difficult for anybody in that kind of position to justify the expenditure of any federal resources to protect the interests of the adult industry."

Still, the increased fines and other penalties may give some infringers pause, since just one piracy conviction can now lead to the forfeiture of the infringer's entire business, from bank accounts to computers to copying equipment to real property ... and that could, hopefully, ruin his or her whole day.
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Mark Kernes

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