New Online Piracy Legislation

[Ksyrup]

Prison terms on tap for 'prerelease' pirates




By Declan McCullagh

Story last modified Tue Apr 19 16:33:00 PDT 2005


File-swappers who distribute a single copy of a prerelease movie on the Internet can be imprisoned for up to three years, under a bill that's slated to become the most dramatic expansion of online piracy penalties in years.

The bill, approved by Congress on Tuesday, is written so broadly it could make a federal felon of anyone who has even one copy of a film, software program or music file in a shared folder and should have known the copyrighted work had not been commercially released. Stiff fines of up to $250,000 can also be levied. Penalties would apply regardless of whether any downloading took place.

If signed into law, as expected, the bill would significantly lower the bar for online copyright prosecutions. Current law sanctions criminal penalties of up to three years in prison for "the reproduction or distribution of 10 or more copies or phonorecords of one or more copyrighted works, which have a total retail value of $2,500 or more."

The bill could be used to target casual peer-to-peer users, although the Justice Department to date has typically reserved criminal charges for the most egregious cases.

Invoking a procedure used for noncontroversial legislation, the U.S. House of Representatives on Tuesday overwhelmingly approved the measure, called the Family Entertainment and Copyright Act. Because the bill already has cleared the Senate, it now goes to President Bush for his signature.

Enactment of these criminal penalties has been a top priority this year for the entertainment industry, which has grown increasingly concerned about the proliferation of copyrighted works on peer-to-peer networks before their commercial release.

"This bill plugs a hole in existing law by allowing for easier and more expeditious enforcement of prerelease piracy by both the government and property owners," said Mitch Bainwol, chairman of the Recording Industry Association of America. "We applaud Congress for taking this step."


The bill's supporters in Congress won passage of the prison terms by gluing them to an unrelated proposal to legalize technologies that delete offensive content from a film. That proposal was designed to address a lawsuit that Hollywood studios and the Directors Guild of America filed against ClearPlay over a DVD player that filtered violent and nude scenes. (ClearPlay had gained influential allies among family groups such as the Parents Television Council and Focus on the Family.)

Peer-to-peer network operators criticized Congress' vote on Tuesday.

"It appears the entertainment industry has once again gotten Congress to use taxpayer dollars to clean up their internal problems," said Michael Weiss, chief executive of StreamCast Networks. Weiss, whose company distributes the Morpheus client, says that many movies and music files that find their way to the Internet early are provided by insiders in the entertainment industry.

Adam Eisgrau, executive director of P2P United, a peer-to-peer software industry association, said his group remains "concerned that the nature of the punishment remains radically disproportionate to the technical crime."

Added Peter Jaszi, a professor at American University who specializes in copyright law: "I don't think this is an approach that is well calculated to create respect for the system."

The criminal sanctions embedded in the Family Entertainment and Copyright Act have been inching their way through Congress since late 2003. An earlier version was drafted in response to footage of "Star Wars: Episode II," "Tomb Raider" and "The Hulk," reportedly surfacing on peer-to-peer networks before their theatrical release. A few months earlier, the major studios had halted their normal practice of sending DVD "screeners" to Academy Award judges.

"I am pleased that the House has passed this bill, which takes us forward in the fight to prevent the most egregious form of piracy--the illegal copying and unauthorized distribution of 'prereleased' works," Sen. Dianne Feinstein, a California Democrat, said after the vote.

Public interest groups have criticized the measure, saying that the strict criminal sanctions do not take "fair use" rights into account. Other sections of the bill create new federal prison terms of up to three years for anyone who unlawfully records a movie in a theater and provide copyright holders with new civil remedies for prerelease movies, music and software that is registered with the U.S. Copyright Office.

Under a 1997 law called the No Electronic Theft Act, copyright infringement has long been a federal crime when the value exceeded $1,000, even if no money changed hands. But Hollywood and the RIAA have argued that it has been too difficult to convince the Justice Department to prosecute people who have been distributing prerelease movies and music.

[SirFozzie]

Public interest groups have criticized the measure, saying that the strict criminal sanctions do not take "fair use" rights into account.


FAIR USE? Since when do folks have Fair Use for stuff that hasn't been released yet?

While I think that it's a bit strict (and I'm sure some others will thing it's nowhere near strict enough).. I do think this is where the RIAA/MPAA have the strongest case.

Prereleases are more egregious then those already released, and the "damage" done is more harsh, therefore it should be punished harsher. Just my .02

[Airhog]

Doesnt mean a damn thing too the end user though. I cannot remember a single case that made the news, of someoen caught pirating software that was just an end users.

[judicial clerk]

The ladies man is an end user.

[Ksyrup]

Originally Posted by SirFozzie

Public interest groups have criticized the measure, saying that the strict criminal sanctions do not take "fair use" rights into account.


FAIR USE? Since when do folks have Fair Use for stuff that hasn't been released yet?

While I think that it's a bit strict (and I'm sure some others will thing it's nowhere near strict enough).. I do think this is where the RIAA/MPAA have the strongest case.

Prereleases are more egregious then those already released, and the "damage" done is more harsh, therefore it should be punished harsher. Just my .02

I agree, in principal, however, I enjoy finding new pre-releases of albums I'm going to buy. I don't sell or buy pre-releases. I just like getting a sneak peek. I still buy them the day they come out. IT seems like this is more of a problem with movies, although I'm sure people sell pre-releases of CDs as well. I'm just not all that familiar with it.

[Maple Leafs]

Originally Posted by SirFozzie

FAIR USE? Since when do folks have Fair Use for stuff that hasn't been released yet?

"Fair use" doesn't mean anything to most people... it's just a catchword that's used to justify copyright infringement. Sort of like saying "I'm anti-globalization" when you feel like smashing a window.

(Speaking of language, who came up with "Family Entertainment and Copyright Act"? Family? Can we not get a rule that American politicians have to give their laws names that make sort of sense? Was "Puppy Belly Nuzzlement Act" already taken?)

[Drake]

I'm no fan of copyright infringement (obviously) or internet piracy, but this is stupid. Three years in federal-pound-me-in-the-ass prison because the movie industry and the RIAA want to exempt themselves from the sorts of network and IT protections most businesses deal with every day to protect their confidential and proprietary data?

They're not asking for protection, they're asking for special treatment.

[Drake]

dola...

For the record, people who want to educate themselves about fair use and copyright infringement would do well to start here: www.authorslawyer.com. This is the guy who represented Harlan Ellison against AOL and is one of the country's leading legal minds on copyright protection for content creators. His blawg is pretty entertaining as well.