Congress Passes PRO-IP Act, but Bush May Veto

Concerned about separation of powers and "legislative intrusion into the internal structure and composition of the President’s Administration."

Over the weekend Congress passed the controversial Prioritizing Resources and Organization for Intellectual Property Act, or PRO-IP Act, which was formally known as the Enforcement of Intellectual Property Rights Act. If you recall, the legislation had originally contained a provision allowing the Dept of Justice to sue file-sharers in civil as well as criminal court. It was a job the DoJ did not want.

"We strongly oppose Title I of the bill, which not only authorizes the Attorney General to pursue civil remedies for copyright infringement, but to secure ‘restitution’ damages and remit them to the private owners of infringed copyrights,"wrote the DoJ to the Senate Judiciary Committee.

Why?

1. Civil copyright enforcement has always been the responsibility and prerogative of private copyright holders.

2. Could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry.

3. The Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions. Resources should be for the public benefit, not on behalf of particular industries.

Much to the DoJ’s dismay, the PRO-IP Act still, however contains a provision creating a cabinet-level Intellectual Property Enforcement Coordinator (IPEC) position in the White House. Dubbed the "copyright czar," the Bush administration feels that it would violate the constitutional separation of powers and thus risks being vetoed.

"This Presidentially appointed IPEC would have primary responsibility for developing and coordinating Administration policy for IP enforcement across the Executive Branch," continues the letter. "While the Administration has been a long time supporter of strong inter-agency coordination — and is willing to work with the Committee on this topic — the statutory creation of an EOP coordinator with the duties described in the bill constitutes a legislative intrusion into the internal structure and composition of the President’s Administration. This provision is therefore objectionable on constitutional separation of powers grounds."

With so much hanging in the balance it may just be that Bush’s unflinching resolve and penchant for protecting his executive turf that saves us all.

jared@zeropaid.com

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