Update: Just as we published this, news came in that this amendment was rebuffed, but the point remains: Congress keeps trying to sneak in little favors to Hollywood every chance it gets.
Congress continues to show that it learned absolutely nothing
from the SOPA/PIPA mess earlier this year. While we've been focused on the problematic IPAA
bill in the House, which would create a high level IP Enforcement "deputy assistant" within the Commerce Department, over in the Senate, Debbie Stabenow is looking to create another such role in the Treasury Department. We just mentioned an effort by the Senate Finance Committee to actually make the Special 301 report useful
by having it go after internet censorship... but according to Politico's Morning Tech, Senator Stabenow has very quietly introduced an amendment to that effort
, which would increase the role of the Treasury Department as Hollywood's private police force:
A tweak by Sen. Debbie Stabenow made available last night would add to the trade bill her own measure, the Protect American Innovation Act. Among other things, the amendment would establish the position of "director of Intellectual Property Rights Enforcement" at Treasury, while boosting the ability of Customs and ICE to find and seize infringing materials entering the country or to be exported.
Stabenow actually introduced this "Protect American Innovation Act"
last year, in the midst of the fight over SOPA and PIPA, and very few people noticed, since all of the attention was on those two bills. But if you look at the details, it's just more of the same
. It would increase the Treasury Department's role in intellectual property enforcement, first by establishing a "director of intellectual property rights enforcement" withing the Treasury. That position would be tasked with working closely with ICE -- and ICE would get its own new "coordinator of intellectual property enforcement." You remember ICE. Those are the folks famous for censoring websites
based on no evidence
, just the RIAA's say-so. Oh, and remember Dajaz1? That's one of those sites that ICE erroneously censored. One of that site's admins lives in Michigan -- Stabenow's home state. But, apparently, Stabenow would rather carry water for Hollywood than protect her own constituents from gross overreach by the US government.
Given how badly ICE screwed up that job, it's amazing that Stabenow wants to increase
their authority. But that's what's happening. The bill defines "piracy" as "activities related to production of or trafficking in unauthorized copies or phonorecords of works protected under title 17, United States Code, or related laws." And we thought "piracy" was defined as "an act of criminal violence at sea." But, notice just how broad that text is there. Any production of "unauthorized copies" of works protected under the copyright act. Yeah, if you make a copy... the Treasury Department and ICE might be able to target you.
The bill also says that Treasury/ICE/Customs should get training in new technology for "detecting and identifying, at ports of entry... pirated goods." Given how broad this is, you could read this to mean that your phones, MP3 players and laptops may get scanned at the border for all of the music and movies you have. There was talk of such things in ACTA, but they were rejected when people spoke up -- and now they're back in a bill from Senator Debbie Stabenow who apparently slept through what happened in response to SOPA/PIPA and ACTA.
The bill also gives law enforcement within Treasury/ICE/Customs pretty broad powers, including issuing fines for importing "pirated" goods, and says that such fines "may not be mitigated" unless ordered by a court or "pursuant to regulations issued by the Commissioner." And such fines "may not be dismissed or vacated." In other words, if they catch you with pirated works, they may be required
to issue fines. In fact, it says that the mitigation, dismissal or vacation of such fines can only happen for "extraordinary cases." Having a few unauthorized songs on your iPhone isn't extraordinary.
But wait... there's more. While the IPAA, as discussed, would increase US diplomatic efforts to push for IP enforcement abroad... and so would this bill
, though in a different area. Rather than IP attaches, now ICE and Customs would be tasked with spreading Hollywood-style maximalism to other countries by increasing staffing to provide training and assistance to other countries in "detecting" such "pirated goods."
There are also a ton
of small changes to copyright law, which would take quite a few hours to dig in and see what they actually do. As is typical of these kinds of bills, they don't tell you what the bill would actually now say -- they just say things like "strike from [phrase y] to [phrase x] and insert [random string of terms]." And, sometimes (including here), even these phrases then point you to other laws that you have to piece together as well. You have to sit down, pull up the original, figure out what's being taken out, what's being inserted and what it all means. There appear to be about a dozen such changes which we'll have to go through later, but it wouldn't surprise me to find more trouble in there.
For example, just a quick look at Section 143 of this bill might appear like a minor textual change. It says you have to add the following to a different bill (19 U.S.C. 1595a(c)(2)). What's that
? Oh, it's the rules for the government forfeiting your property. And what's the text?
‘(G) it is a technology, product, service, device, component, or part thereof the importation of which is prohibited under section 1201(a)(2) of title 17, United States Code.’.
Okay piece that back into the bill above, and you see that what it's actually doing is increasing the types of things that can be forfeited by ICE and Customs. But how so? Well, you have to jump over to section 1201(a)
of Title 17, which is the anti-circumvention provision of the DMCA.
When you sit back and parse it all together, you realize that they're now allowing ICE/Customs to forfeit any circumvention device
. Considering how many "circumvention devices" you already own without realizing it, you should be concerned.
Either way, I'm sure there's more in there, but this is just a quick read, because, again, this effort was announced yesterday
for markup today
. And, yes, while Stabenow released this bill last year, it got little attention because no one thought it was going anywhere. To suddenly jump the line and try to attach it to a separate, important bill, shows the same sort of attempt to sneak through laws for Hollywood without public scrutiny.