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There was a hearing yesterday in the U.S. Congress, in the House IP Subcommittee on H.R. 2033, the "Design Piracy Prohibition Act." The title of the hearing was "Are Special Provisions Needed to Protect Unique Industries?" The title reminded me of looking at the absolute worst efforts by first year law students to draft questions for certiorari, something like: "Does it violate Due Process for an evil serial killer of innocent children to die for his sins?" (It should be noted that the subcommittee chair is not a sponsor of the legislation). One may see the list of witnesses and read their prepared statements here. Women's Wear Daily has an article about the hearing, here. The article has a particularly depressing tidbit: the Council of Fashion Designers of America, a strong proponent of the bill, is trying to broker a deal with the American Apparel and Footwear Association, and others in the industry. A sponsor of the legislation, Congressman Delahunt of Massachusetts, referred to this obliquely in his testimony, remarking, "I am aware that there have been fruitful negotiations with those who want to improve the bill, and I would hope, Mr. Chairman, that we can soon sit down to connect the ideas that have been proffered." The phrase "those who want to improve the bill" is code language in Washington for "those who vehemently oppose the bill, but who are scared s*less that if they don't try and eliminate the worst features, the bill will pass as is over their dead bodies."

It is also noteworthy that the conjuring up of folk devils up to support the bill has been ratcheted up to levels that might make even the late (and great) Jack Valenti wince, and it is the mainstream media that is doing the dirty work. Mr. Delahunt's prepared statement quoted the following passage from an op-ed piece published in the NY Times by Newsweek contributor Dana Thomas:

Most people think that buying an imitation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking and terrorism. Ronald K. Noble, the secretary general of Interpol, told the House of Representatives Committee on International Relations that profits from the sale of counterfeit goods have gone to groups associated with Hezbollah, the Shiite terrorist group, paramilitary organizations in Northern Ireland and FARC, the Revolutionary Armed Forces of Colombia.

There are some notable omissions from this list, like Hamas, Al Qaeda, the Shining Path, and the Tamil Tigers. It is heartening to know that some terrorists draw the line at copying Western fashions. Perhaps there is hope that they, like Anakin Skywalker, can be turned from the Dark Side. It is less clear whether our legal system can be. H.R. 2033 is not limited to attacking groups associated with terrorists (note Mr. Noble's statement's Bush-like inference that Hezbollah et al are implicated in counterfeiting because "groups associated with" them are allegedly counterfeiting); it is not even limited to knock-offs. Instead, as Steve Maiman, co-owner of Stony Apparel testified in opposition to the bill, "We're in this business to make cute garments at a fair price for the average American, not to sit in depositions in copyright lawsuits arguing with lawyers over who invented an original style ... of a kid's top for $14.99 retail before it goes on sale." Tracing rights in fabric design is extraordinarily difficult, and I have tried in private practice to do so. And the bill (which is not part of the Copyright Act, but would rather be placed in chapter 13 of title 17) also includes a provision on secondary liability, sweeping in even more people as potential defendants. This is why there are references to those who seek to "improve the bill": the bill is so draconian, so unnecessary, and the consequences so devastating to those 99% of Americans who do not spend tens of thousands of dollars on a single piece of clothing, that one doesn't know whether to hide in a bunker or try and eliminate the the worst features of a bill that has only bad features.

All I want, and I think most people want, is to be able to go to Target to get reasonably priced, safe clothes for our kids without having to worry about supporting child prostitution rings and terrorists. I don't think we are, and it is a sad day when a bill to benefit the tiniest fraction of an industry will be used to destroy the rest of it. If there is a ray of hope in this debacle, it comes from "me-too-itis": also testifying was the Alliance of Automobile Manufacturers, who once again testified that they too should get design protection for automobile parts. (In my 13 years in Washington, I lost count of the times I saw bumpers and other large parts hauled out at a Congressional hearing in support of this effort). To the Alliance's great credit, at least in their prepared statement, they did not play the safety card: knock-offs are unsafe and should be banned on that basis, even though there is far more empirical support for that claim than for the too-clever ones quoted above by Mr. Noble about counterfeiting. Testifying against the parts proposal was the Consumer Federation of America and other groups.

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