At Dozier Internet Law, we represent a lot of businesses in protecting their intellectual property. On the other hand, we represent a lot of businesses accused of intellectual property infringement and theft. So unlike the IP owner special interest groups, which are always going to support stronger IP laws, and the "public interest" groups, which are always going to oppose stronger IP law enforcement, we don't have a preconceived agenda to push, except to try and encourage smart and thoughtful legislation and enforcement decisions.
There is always a balancing act to legislating, of course. In my lobbying days in the 1980s and 90s, I was always impressed by state and congressional legislators' willingness to listen to objective and fair advice. But keep in mind that this bill is being pushed by both sides, Republicans and Democrats, with the support of the RIAA and business concerns, and the support of the AFL-CIO and labor concerns. So, that is a formidable combination unlikely to be defeated.
That being said, the bill, which is headed to the President for his signature, is pretty broad and potentially expands beyond reason the parties and penalties subject to the US Intellectual Property laws. There is going to have to be a lot of prosecutorial restraint exercised to avoid very unpleasant and cataclismic unwarranted and unjustified damage to businesses involved in E-commerce. Dozier Internet Law will give a more detailed review of the law once the President signs it. But vesting greater power in prosecutors to pursue IP theft/infringement and seize associated assets is not a good practice. Because, unfortunately, the "greater power" gives the prosecutor far greater discretion. And it seems to me, from what we are seeing, that broader prosecutorial discretion in complex IP and IT cases is a recipe for disaster.
I cannot forget our ISP client being sued for spam and ending up in bankruptcy, even though they were likely not liable. I cannot ignore the "mistake" made by the Connecticut state police in getting the IP address of our client wrong, raiding his house, seizing his work computers, and then dropping all charges without as much as an apology. I still recall the the FBI raiding our business client's two offices for "hacking"...falsely reported to them by a competitor, or the Utah police taking out criminal charges for what was obviously a "standard fare" civil intellectual property dispute, or a pending prosecution for posting something on Craigslist that is blatantly unconstitutional on its face. Being pro-business does not always mean being biased or prejudiced, or even inclined, towards the protection and prosecution of IP. We handle matters on both sides. But it does mean supporting smart, well conceived, understandable, and fair laws and the attendant prosecution of those laws.
And that is the problem with discretion. Government can put a business out of business using their own "judgment" and "expertise". Just look at last week's seizure by Kentucky of the domain names of alleged gambling sites under the guise that the domain names are an instrumentality of illegal gambling without notice to anyone! This is a complex issue. Litigate first, then obtain the remedy second. But don't go out and shut down businesses because you think you have an argument that you might be right. That is the problem with prosecutorial discretion in a subject matter that mixes technology and the business of the web with unclear laws.
How did we get here? Well, the RIAA tactics of suing first and asking questions second, according to public interest groups, is savage and merciless, they say. The public interest groups are likewise pretty aggressive in explaining how to get rid of evidence of true illegality, representing scofflaws for free, and dishing out legal guidance that is just plain wrong, but gives the "mobsophere" a false sense of security that leads to more brazen misconduct.
Self policing and self regulation did not work. Public interest groups like Public Citizen, Electronic Frontier Foundation, the ACLU and the like did not use appropriate restraint and reasoned judgment, but instead fostered IP problems by fighting for the rights of the "maligned", but really just promoting a false sense that stealing the IP of others is quite alright.
Now we have Congress over-reacting, as so often happens. The pendulum has now swung too far off center. It is caused, indeed, by the inability of the public interest groups to see the bigger picture. And it is not good for the public, it is not good for web businesses, and it is not good for the online world as a whole. And just watch how many stay legislators decide that this type of law would be good for their state. It is only going to get uglier for everybody.
One day, Congress and state legislatures may realize they went too far, and the pendulum will swing back. Let's hope next time it swings back to the middle with a fair and balanced solution. And the RIAA and the IP owners will likely be to blame if that happens for having been too aggressive in their enforcement efforts. My gut tells me, however, that the business interests and IP owners (RIAA included) may know a good thing when they see it, use very measured self-restraint, and ride this law for a long, long time.
The public interest groups could learn a thing or two about self-restraint and good judgment if that happens.
Update: The public interest blogosphere is full of claims that the President will veto this bill. Unfortunately, the vote passing it out was far in excess of 2/3 in support, which means the bill is "veto proof".