There is no, repeat no, risk that civil enforcement under PIRATE would supplant civil enforcement by property holders – DoJ would never let that happen – they have expressly stated again and again that they will move to enforce IP rights only when enforcement by private rightsholders is ineffective or impossible.

It would also, as a practical matter, be incredibly foolish for private rightsholders to stop bringing strict-liability enforcement actions in the hope that DoJ would bring civil enforcement actions in which it must prove all the elements of a criminal violation – including criminal scienter. Private enforcement remains a far more powerful tool than DoJ civil enforcement under PIRATE – and that fact alone should ensure that private enforcement remains the preferred means of enforcing IP rights.

As a result, DoJ civil enforcement power would be useful only in very unusual contexts – like the one that we have in the P2P space. DoJ’s efforts to investigate criminal violations of 506 by users of filesharing software are likely to uncover lots of parties who have violated the law, yet may not warrant criminal prosecution. (In other words, if DoJ were to start targeting high-volume filesharers, it would probably discover that many were actually teenagers and college students who are otherwise law abiding.) In this unusual circumstance, civil enforcement would let DoJ avoid having to choose between bringing criminal charges that might be unduly harsh or letting unlawful conduct go unpunished.

There is no, repeat no, risk that civil enforcement under PIRATE would supplant civil enforcement by property holders – DoJ would never let that happen – they have expressly stated again and again that they will move to enforce IP rights only when enforcement by private rightsholders is ineffective or impossible.

It would also, as a practical matter, be incredibly foolish for private rightsholders to stop bringing strict-liability enforcement actions in the hope that DoJ would bring civil enforcement actions in which it must prove all the elements of a criminal violation – including criminal scienter. Private enforcement remains a far more powerful tool than DoJ civil enforcement under PIRATE – and that fact alone should ensure that private enforcement remains the preferred means of enforcing IP rights.

As a result, DoJ civil enforcement power would be useful only in very unusual contexts – like the one that we have in the P2P space. DoJ’s efforts to investigate criminal violations of 506 by users of filesharing software are likely to uncover lots of parties who have violated the law, yet may not warrant criminal prosecution. (In other words, if DoJ were to start targeting high-volume filesharers, it would probably discover that many were actually teenagers and college students who are otherwise law abiding.) In this unusual circumstance, civil enforcement would let DoJ avoid having to choose between bringing criminal charges that might be unduly harsh or letting unlawful conduct go unpunished.