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Controversial Copyright Legislation Moves Forward, but with Significant Changes

By Stephanie Robinson

By an overwhelming majority of 410-11, the U.S. House recently passed the Prioritizing Resources and Organization for Intellectual Property Act of 2007 (PRO-IP Act). The legislation has been controversial among many legal experts and consumer groups for proposing significant and, according to many, unnecessary changes to existing copyright law. The PRO-IP Act proposes new governmental powers and bureaucracies ? including a ?copyright czar? ? with the stated goal of combating copyright infringement. The PRO-IP Act also provides for criminal and civil forfeiture of property used to commit copyright infringement, and it would allow courts in copyright litigation to order the seizure of property containing records documenting acts of infringement. However, perhaps the most controversial aspect of the legislation was removed prior to passage. As introduced in the House, the PRO-IP Act would have provided as follows: A copyright owner is entitled to recover statutory damages for each copyrighted work sued upon that is found to be infringed. The court may make either one or multiple awards of statutory damages with respect to infringement of a compilation, or of works that were lawfully included in a compilation, or a derivative work and any preexisting works upon which it is based. In making a decision on the awarding of such damages, the court may consider any facts it finds relevant relating to the infringed works and the infringing conduct, including whether the infringed works are distinct works having independent economic value. That change would have comprised a substantial departure from the analysis used to calculate statutory damages for copyright infringement. Currently (and, ostensibly, for the foreseeable future), the Copyright Act expressly provides that compilations are to be considered ?one work? for the purpose of calculating statutory damages for their infringement. Industry groups had been strongly in favor of the legislation as it was originally drafted, because its passage would have increased the amount of copyright damages awards. The fact that the statutory damages language was stripped from the bill prior to passage is compelling evidence (to the extent that any was needed) that it was never the intent of Congress to allow for heightened damages awards for unauthorized copying of compilations, even when the constituent parts of those compilations are independently copyrighted and capable of ?leading their own copyright life? apart from any suite in which they are included.

Full post as published by Business and Technology Law on May 29, 2008 (boomark / email).