Hearing of the Courts, the Internet and Intellectual Property Subcommittee of the House Judiciary Committee - Intellectual Property Act of 2007

Interview

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REP. HANK JOHNSON (D-GA): Yes, just some thoughts. And certainly I appreciate the efforts of the chairman, who has introduced this legislation to help mitigate some of the loss that Americans are undergoing as a result of copyright and trademark infringement. And I'm fully supportive of efforts to cut that so that American businesses can prosper.

I am concerned about the fact that the enforcement provisions of this law -- of this proposal, both civil and criminally, would go more toward Americans as opposed to those in other countries who are responsible for the tsunami, if you will, of counterfeit products entering this country and circulating around the world.

And so I -- that brings me to my issue of free trade, if you will, and the agreements that this country signs with other countries. And there seems to be a lack of strong protections in these trade agreements that would be helpful in stemming the tide of these counterfeit goods coming here and circulating around the world.

Would you comment on that, Mr. Cotton?

MR. COTTON: I would make three very quick points in response.

First, I think the issue that you raised is critically important. But what I would say to you is that in arguing the case internationally for stronger IP protection action by countries internationally, they look to the example of the United States in terms of what they should do and how they respond.

REP. JOHNSON: Even the Chinese?

MR. COTTON: Well, the -- I would say -- ultimately I would say to you yes, that is to the extent that the -- to the extent that we wind up with counterfeit goods on our streets and to the extent that we ask countries every place from China to many other countries in the world to devote and to -- to devote very significant resources to enforcement and to escalate the message -- for example --

REP. JOHNSON: Well, how do we do that in a free trade agreement? How do you counter the notion that our free trade agreements don't go far enough with respect to strong protections?

MR. COTTON: Well, I -- I'm sorry -- I would agree with you that it would be desirable to use every lever that we have available to us. I guess my only point I was making was that I would agree with you that it would be desirable to have our free trade agreements. It is desirable --

REP. JOHNSON: It seems that those are the best route to be able to stem the tsunami of counterfeit goods coming over here and circulating around the world, even though I appreciate the stronger enforcement mechanisms that are a part of this legislation, and the aspirational aspects of this insofar as international enforcement coordination that is called for under this bill.

But let me shift now to this issue of the registration of copyrights as a prerequisite to criminal prosecution. And then this legislation would remove the registration requirement. I would ask Ms. Mandelker.

Normally in a criminal case you have a need to prove intent. And is there such a need in -- I would assume that that need to prove intent is a part of the criminal laws insofar as copyright infringement that exists now. Would that change under this new legislation?

And if it does not change, how could you prove intent in a situation where you could not find where, say, a photograph is copyrighted. It has copyright protection, but you can't find it due to the technological limitations of the copyright department today. How could you prove intent?

MS. MANDELKER: Well, let me just say at the outset that we actually see this provision as a clarification of existing law. We think it's important to make it clear in existing law that proof of registration is not a requirement when we bring our criminal cases. But we don't think this is actually something new. It's just, again, a clarification.

Certainly we need to improve -- prove intent, willful intent. And I would --

REP. JOHNSON: How can you do that without registration -- without a registration requirement?

MS. MANDELKER: Well, I might turn to the -- if you have an individual, for example, who clearly tried or made a good-faith effort to find out whether or not a particular work was registered, who sought --

REP. JOHNSON: They would have a defense. But it would not protect them from being prosecuted, being hauled off to the jail, being fingerprinted, having to make bond, hire an attorney and then present their defense at some point later.

MS. MANDELKER: Let me just say that at the department we're really interested in going after willful infringers.

So --

REP. JOHNSON: Well, how can you prove willfulness without a prerequisite of registration? How could a prosecutor make that assessment without a requirement that the work be registered?

MS. MANDELKER: Well, again, I would note that we don't think that it's currently a requirement for prosecutors --

REP. JOHNSON: Well, it should be. It would seem to me it should be.

MS. MANDELKER: I would also note that in many of our cases we're dealing with not just one good but many counterfeited goods. And as it was noted earlier, it would really slow down the criminal prosecution process to force our prosecutors to go make that determination.

Again, at the department we're focused -- we're not going to be focused on the example that Ms. Sohn noted, of an individual who took a photograph. We're going to be focused on those large-scale infringers.

REP. JOHNSON: Yeah, well, if the state of the law allows you to go against that small photographer, sometimes it will happen -- a renegade prosecutor, if you will. So I'm concerned about the -- doing away with the registration requirement. I'm concerned about that.

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