Allen Pulls Support for Anti-Counterfeiting Bill

Legislation originally intended to prevent tampering with physical authentication features affixed to software, movies, CDs and similar products has lost the support of its lead Republican co-sponsor, Sen. George Allen (R-Va.), because of Senate Judiciary Committee changes that open the scope of the bill to digital or cyber authentication marks and, according to Allen, exposes potentially innocent Internet service providers (ISPs), to “enormous, unwarranted civil penalties.”

S. 2395, the Anticounterfeiting Amendments of 2002, originally intended to make it illegal to “knowingly traffic” in illicit or counterfeit documentation or packaging, labels or other authentication features affixed to or embedded in “a phonorecord, a copy of a computer program,” or “a copy of a motion picture or other audiovisual work.”

The bill, sponsored by Sen. Joe Biden (D-Del.), originally pertained only to “physical” features, such as certificates of authenticity included in commercial shrink-wrapped software.

However, the Judiciary Committee deleted the word “physical,” prompting Allen to warn, “Opening this legislation to the digital realm has raised a host of troubling liability issues that cause substantial harm to Internet service providers.”

The bill, which has not yet come to the Senate floor for a vote but has been approved by the Judiciary Committee, provides for statutory penalties up to $25,000 for each individual violation. Allen believes ISPs could be liable under the proposed law.

“Originally, this bill took a scalpel’s precision to a very specific and identifiable problem, tampering with or counterfeiting physical authentication features,” Allen said. “But what a difference a word makes. While we all agree that those who knowingly traffic in illegal digital content should be held liable, this bill was not intended to be the vehicle to address that issue.”

Matt Raymond, communications director and senior policy advisor for Allen, said the phrase “knowingly traffics” is “very problematic” for ISPs, particularly on issues involving file swapping.

“The intense debate over digital rights management merits more attention than taking a narrowly focused bill that solves one real problem, and changing it in a way that creates a host of new ones,” Allen said.

Biden and his staff, who are in Delaware attending the funeral of Biden’s father, were unavailable for comment.

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