The Departments of Justice and Commerce came out against key elements in a bill that would boost the government's efforts to crack down on intellectual piracy, saying that they would turn the Justice Department into a de facto legal team for private industry and result in Congress trying to run the president's office for him.
The Enforcement of Intellectual Property Rights Act, introduced in July in the Senate and reported out of the Judiciary Committee earlier this month, has the backing of Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.), the committee’s chairman and ranking member, respectively.
It would create a post in the White House to coordinate enforcement of IP laws by various government agencies; would require coordinating with Congress to develop a strategic play to combat IP theft; and would boost resources for IP enforcement -- all similar to provisions in the House PRO-IP Act, which passed by a wide margin in May.
It would also give the Justice Department the power to bring civil cases against suspected copyright infringers. Currently, it can only pursue criminal prosecutions and must rely on aggrieved copyright owners to file civil suits.
The bill attempts to bring together a number of Senate bills on the subject, as well as to mirror the House’s PRO-IP Act.
DOJ and Commerce said they support the goal of protecting intellectual property rights, but in a letter to Leahy and Specter, top lawyers with both departments said they could not support authorizing the attorney general to pursue civil suits against copyright infringers, saying that it would result in government lawyers working pro bono to collect judgments for industry.
"In effect, taxpayer-supported department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry," they wrote.
They said that with a limited budget, pursuing civil cases would have to come at the expense of criminal prosecutions, which only the government can pursue, adding, "The resources of the Department of Justice should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil-enforcement provisions.”
They also argued that creating a separate intellectual-property-enforcement officer in the executive office of the president would be "a legislative intrusion into the internal structure and composition of the president's administration" and, thus, a violation of separation of powers.
They said they were reserving judgment on the final bill in the hopes that it could be changed. Otherwise, they could not advise the president to support it.