So Congress was back in session for 5 days in September, which was just enough time to enact a temporary budget to avoid a government shut-down, and for the Senate Judiciary Committee to act on the Design Piracy Bill, or as it is known here at the Fashion Law Blog, the Destruction of Affordable Fashion Act.
Renamed the Innovative Design Protection Act of 2012 (S. 3523) (IDPA) when it was introduced into the Senate on September 10, 2012 by CFDA darling Senator Schumer, the IDPA was reported favorably out of the Senate Judiciary Committee on September 20, 2012. IDPA now sits on the Senate's Legislative calander, waiting for the senators to come back to the "lame duck" session of Congress.
Having reviewed the bill, we wanted to point out two changes:
- First, a person/company is required to give notice to a potential infringer and then wait 21 days before filing suit. Us fashion lawyer typically call this a "safe harbor provision."
- Second, damages don't begin to accrue until notice of potential infringement is sent. This should mean that the amount at issue is only sales made AFTER that date. Right now, in fabric copyright cases for example, once a potentially infringing item is found, the plaintiff generally claims all profits for the sale of that style or statutory damages. Most sales are made PRIOR to the sending the cease and deist and/or filing of the action.
Not much has been said about this radical change in the potential damages, but I think this is a step in the right direction. The only problem is when you have de minimis damage awards, the case becomes all about attorneys fees. For example, have you gotten a class action settlement where you get $.25 off your next cable bill, but the attorneys get over 6 figures? Yeah, that's what will happen here. As a fashion lawyer who defends copyright infringment cases, I guess I shouldn't complain, but a bill where only the attorneys wins is not good for the fashion industry or you the consumer.
In sum, we maintain our previous position: