Senate Passes IP Bill, Minus DoJ Civil-Suit Involvement; House Passage Expected

S-3325 retains another provision irksome to the administration -- a “coordinator” position based in the White House for monitoring federal agencies with IP duties. The coordinator would replace the current National Intellectual Property Law Enforcement Coordination Council at the Commerce Department. The job’s holder would chair an interagency advisory committee with representatives spanning DoJ, U.S. Trade Representative, State and Homeland Security departments and Copyright Office, as well as others. The coordinator’s role was scaled back significantly from what the original House version of PRO-IP offered (WID July 25 p3), to the point that the coordinator can only assist in implementing the “Joint Strategic Plan” at agencies’ request.

The bill would provide protective orders so infringement evidence and unrelated third-party information on seized equipment or records can’t be made public. It would get the FBI more resources dedicated to IP enforcement, backing up DoJ’s Computer Crimes and Intellectual Property Section, plus federal grants for DoJ to disburse to state and local enforcement authorities.

The provision involving DoJ in civil piracy suits was missing from a 63-page substitute offered late Wednesday by Senate Judiciary Committee Chairman Patrick Leahy, D- Vt. Sen. Ron Wyden, D-Ore., said in a written statement that the civil-suit provision was removed at his request after “substantial discussions” with Leahy and the committee. The estimated 30,000 RIAA lawsuits against P2P users shows that “industry is more than able to enforce its intellectual property rights in civil courts without the contribution of taxpayer funds and busy federal prosecutors,” Wyden said. A Wyden spokeswoman confirmed that “he was the only reason it was removed.” Other Hill and industry sources, though, said administration opposition to DoJ involvement wasn’t taken lightly.

The bill faced opposition on points other than that provision, a committee spokeswoman told us, while not disputing Wyden’s role. Sen. Jon Kyl, R-Ariz., first objected to the bill on the floor Friday morning, and Sen. Tom Coburn, R-Okla., placed an early hold on the bill due to its funding provisions, she said. Wyden said in his statement that he remains upset by the bill’s forfeiture provisions, which he said could allow “seizure of important components of our Internet infrastructure” by “overzealous federal prosecutors.”

Glowing content industry statements didn’t mention the civil-suit excision. “This is a win for … America’s innovators, workers whose jobs rely on intellectual property, and consumers who depend on safe and effective products,” said Tom Donohue, president of the U.S. Chamber. “At a critical economic juncture, this bipartisan legislation provides enhanced protection for an important asset that helps lead our global competitiveness,” said Mitch Bainwol, RIAA chairman. A spokeswoman for the RIAA told us the civil-suit provision is “tangential” to the bill’s “broader strength.” Artists don’t want “handouts” the way the financial industry does, said Patrick Ross, Copyright Alliance executive director: “They just ask that existing copyright laws are enforced” so they can earn a “living wage.”

Bill Would Authorize Continued Webcaster Negotiations

Meanwhile, labels and webcasters seem to be making progress in talks on performance royalty rates. A bill introduced late Thursday would authorize SoundExchange and the RIAA to continue negotiations with the Digital Media Association, NPR and other webcasters. It was on Friday’s House suspension calendar, which hadn’t come up for a vote by our deadline. Negotiated rates must be approved by lawmakers in lieu of controversial March 2007 rates set by the Copyright Royalty Board. User-customized Internet radio service Pandora has been especially vocal about its likely demise should SoundExchange not offer lower rates (WID July 30 p2).

The Webcaster Settlement Act (HR-7084) would give parties until year-end to set rates. It’s sponsored by House Judiciary Committee Chairman John Conyers, D-Mich., Ranking Member Lamar Smith, R-Texas, IP subcommittee Chairman Howard Berman, D-Calif., and Reps. Jay Inslee, D- Wash., and Don Manzullo, R-Ill. Inslee and Manzullo are sponsors of a “parity” bill that would scrap the board rates entirely (WID May 11/07 p3). “In the last several weeks the negotiations have made progress,” said DiMA, NPR, SoundExchange and the RIAA in a joint statement.

It wasn’t clear whether the bill would be considered by the Senate before adjournment. The spokeswoman for Wyden, who sponsored the parity bill’s Senate companion, said he wasn’t offering a companion for the settlement bill, “but will do his best … to advance this when it comes over from the House.”

Child exploitation bills got different treatment in each chamber. The Combating Child Exploitation Act (S- 1738) passed the Senate, amended to include provisions from S-519, the SAFE Act. It would have DoJ set up a national Internet Crimes Against Children task force to coordinate with state and local officials and have DoJ set up a national “data system” supporting investigations and prosecutions. S-1738 earlier was amended to clarify that it wouldn’t preempt a pioneering Wyoming system many states use (WID May 16 p1). The bill got renewed attention when promoted Sept. 15 by Oprah Winfrey on her talk show. But HR-4120, approved last week by the Senate with slight revisions from the original House version (WID Sept 25 p6), is on the “postponed” daily suspension calendar in the House and may not get a vote before adjournment.