Public Knowledge legal intern Rashmi Rangnath provides the following analysis of this draft:
Two new criminal offenses added to list of offenses in section 506: Attempt to commit criminal infringement and conspiracy to commit criminal infringement are to have the same penalties as actual criminal infringement.
So far copyright owners could prevent infringing imports. Now they will also be given power to prevent infringing material from being exported.
A new definition of “traffic in” has been added to the anticircumvention provisions (section 1202 (a)(3)(c)). According to this definition trafficking in circumvention devices would include making, import and export of such devices. I think this might affect the triennial rule making because even if one gets the permission to circumvent, it might not apply to permission to traffic in circumvention tools. And if “traffic in” is understood to cover “making” then the person who gets permission to circumvent might not be able to actually circumvent.
The present section 1202 does not define “traffic in”. It makes it illegal for a person to provide circumvention tools to others. The effect is that someone who gets permission to circumvent under the triennial rulemaking, will not be able to obtain circumvention tools from others. But he/she might be able to circumvent, if he/she can make the tool himself/herself. However, by introducing a new definition for “traffic in” and including “making” within that definition, the section makes it impossible to circumvent even if permission to do so is obtained and the person who obtains permission can himself/herself make the tool.
Proposals made to double jail terms for offenses such as trafficking in counterfeit labels, bootlegging, and trafficking in counterfeit goods. There are also proposals to substantially increase jail terms for repeat offenders. (in many cases from the present maximum of 6 years to an new maximum term of 20 years). Repeat offenses seems to be classified as offenses under title 17 and 18 i.e. offenses related to copyright infringement, counterfeiting and trafficking in counterfeit goods.
A new section 2323 is to be added to chapter 111 of title 18. All provisions relating to forfeiture, destruction and restitution are subjected to the provisions of this section. It creates two categories under which forfeiture is dealt with — civil forfeiture and criminal forfeiture. Civil forfeiture extends to all counterfiets and property used in counterfeiting. The criminal forfeiture section makes it mandatory to forfeit property in addition to other penalties.
The bill proposes establishing a new unit in the FBI to work with the Computer Crime and IP section of the DOJ. It also provides that FBI agents shall be trained in investigation and prosecution of offenses under titles 17 and 18. It provides for assignment of Federal prosecutors to DOJ offices in HongKong and Budapest to deal with crimes under these provisions The Attorney General is directed to create a task force to develop and implement plans to investigate and prosecute international crime syndicates engaged in IP crimes. The bill has provisions relating to additional funding for each of these new offices.
Public Knowledge is paying close attention to this legislation as it works its way through the legislative process. Please watch our Policy Blog for new developments.