On May 14, 2007, the office of the U.S. Attorney General transmitted a legislative proposal to U.S. House Speaker Nancy Pelosi that would represent one of the most significant overhauls of federal copyright law in recent years. Most of the proposal’s provisions work to expand the scope of the statute and include more tools to combat criminal copyright violations. However, one provision in particular would represent a significant new weapon for those who target businesses for copyright litigation based on software use. The proposed modification to 17 U.S.C. § 503(a) is underlined below:
At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and records documenting the manufacture, sale, or receipt of things involved in such violation. The court shall enter an appropriate protective order with respect to discovery by the applicant of any records that have been seized. The protective order shall provide for appropriate procedures to assure that confidential information contained in such records is not improperly disclosed to the applicant.Unlike under the Lanham Act, which provides remedies for trademark infringement, the current iteration of the U.S. Copyright Act allows courts considering claims of copyright infringement to order the impoundment of the fruits of the infringing activity – the illegal copies themselves. However, the proposed amendment gives courts the authority to impound records reflecting details regarding the infringement.
The potential for this or similar legislative proposals to affect the operations of your business makes it even more important to ensure that all records regarding software license purchases and installations are readily available, or at least easy to retrieve. Such pro-active organization on your part not only makes good business sense, it also greatly facilitates the software audit process for those destined to receive letters from the Business Software Alliance or the Software & Information Industry Association (as are an ever-increasing number of U.S. businesses)…and it might help to avoid some of the harsher remedies that the future may hold under the Copyright Act.
A copy of the legislative proposal may be found here.