Which Party is Better for Sane IP Law?

Who knows. Wired has a story about legislation pending in Congress that would empower the Justice Department to bring civil suits for infringement of intellectual property rights (the Department already has power to bring criminal suits, but rarely does so).

This just seems backwards. Copyright/patent/trademark holders already have the right to bring suit if they see their property being infringed. In other contexts, a private right of action like this is seen as a good way to enforce the law at minimal government expense. Rights-holders have a strong financial incentive to bring suit to defend their works, so the government can just sit back and let them bring suits, and the law will be enforced. (In passing some laws, Congress will expressly refuses to create a private right of action, out of fear that a law will be enforced too vigorously, but that’s the exact opposite of what’s going on with the law they’re currently considering.)

So in the case of IP laws, a private cause of action already exists, but some members of Congress are considering having the Justice Department take over some of that litigation. Huh? There are two huge problems with this:

1. Redundancy/Expense This is a project that the government just doesn’t need to get involved in. Justice Department attorneys have limited time. Adding this responsibility to their already long list would mean either hiring more lawyers or diverting attention from current priorities.
2. Over-Enforcement Though less obvious, the costs here are potentially greater. Under the current system, a copyright/patent/trademark holder can give the public a gift by deciding not to enforce his or her IP rights. Lots of things just aren’t worth litigating over, so lawsuits are never brought. This acts as an important check on the strength of intellectual property rights, and makes the rest of us richer in the process by letting us share and build on ideas that we wouldn’t otherwise be able to. The Justice Department, however, would not have the same natural constraint as a private rights-holder. It would bring suits that wouldn’t be worth the time and money to rights-holders who depend on the receipt of money damages to make the litigation worthwhile to them.

Who’s responsible for this? Here’s the list of the bill’s Senate sponsors:

• Patrick Leahy D-VT
• Arlen Specter R-PA
• Evan Bayh D-IN
• George Voinovich R-OH
• Dianne Feinstein D-CA
• John Cornyn R-TX

Hmmm. D, R, D, R, D, R. Three from each party. I guess Leahy (who I assume is the real sponsor), wanted to present this as a bipartisan issue, so he got three sponsors from each party to make it look balanced. That being said, I think that obtuseness over IP issues is shared between both parties. Utah’s Orrin Hatch (R), for example, is famously cozy with Hollywood. (I wonder why his name isn’t on this.)

It’s clear that this bill is a gift to the entertainment industry. I’m sure the RIAA would like nothing better than to get the Justice Department to take over the job of suing America’s file-sharers. Then the Justice Department, instead of the RIAA, could be the target of widespread resentment for suing grandmothers and college students. As nice as this law might be for Hollywood, though, it’s a bad idea for the rest of us.

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