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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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March 27, 2004

Funding the War on Filesharing

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You may not agree with the recording industry's litigation campaign against people who use peer-to-peer file-sharing networks. No matter. Under legislation introduced Thursday by Senators Patrick Leahy (D-VT) and Orrin Hatch (R-Utah), you'd still have to pay for it.

The legislation in question is the Protecting Intellectual Rights Against Theft and Expropriation Act (PIRATE Act). It would allow federal prosecutors to bring civil copyright infringement suits--meaning a lower burden of proof and no need to show that a defendant had knowledge of knowledge of/willful engagement in her wrongdoing.

"For too long, federal prosecutors have been hindered in their pursuit of pirates, by the fact that they were limited to bringing criminal charges with high burdens of proof," said Senator Leahy in a statement introducing the bill. "In the world of copyright, a criminal charge is unusually difficult to prove because the defendant must have known that his conduct was illegal and he must have willfully engaged in the conduct anyway."

Two million dollars are earmarked, four U.S. Attorney's offices must set up a "pilot" program, and the Department of Justice is required to file annual reports with the Judiciary committee to identify how many civil actions have been brought.

Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.

Says Sharman attorney Phillip Corwin over @ Wired: "It's unfortunate that the entertainment industry devotes so much energy to supporting punitive efforts at the federal and state level, instead of putting energy into licensing their content for P2P distribution so those same people could be turned into customers."

Sure is.

More (reg. req.) from David McGuire @ the Washington Post.

Comments (3) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Joe Gratz on March 27, 2004 1:44 PM writes...

It would allow federal prosecutors to bring civil copyright infringement suits--meaning a lower burden of proof and no need to show that a defendant had knowledge of her wrongdoing.

It appears that knowledge of wrongdoing is still required. The bill just allows civil actions brought by the AG based on the current criminal copyright infringement provisions in section 506. Section 506 requires that infringement be "willful" -- with knowledge of wrongdoing.

My further comments on this naked wealth transfer to rent-seekers are here.

Permalink to Comment

2. Donna Wentworth on March 27, 2004 3:00 PM writes...

Thanks--I was a bit too hasty there: it's willful + knowledge, as you say.

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3. Cypherpunk on March 27, 2004 3:18 PM writes...

Hatch had an interesting spin on the proposal, http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1005&Month=3&Year=2004 :

"A second group of filesharers consists of those who copy and redistribute copyrighted works even though they do know that doing so violates federal law. In many cases, these are college students or young people who think that they will not get caught. Many of these filesharers are engaging in acts that could now subject them to federal criminal prosecution for copyright piracy.

"It is critical that we bring the moral force of the government to bear against those who knowingly violate the federal copyrights enshrined in our Constitution. But many of us remain concerned that using criminal law enforcement remedies to act against these infringers could have an overly-harsh effect, perhaps, for example, putting thousands of otherwise law-abiding teenagers and college students in jail and branding them with the lifelong stigma of a felony criminal conviction.

"The bill I join Senator Leahy in sponsoring today will allow the Department of Justice to supplement its existing criminal-enforcement powers through the new civil-enforcement mechanism. As a result, the Department will be able to impose stiff penalties for violating copyrights, but can avoid criminal action when warranted."

In other words, he is saying that he is concerned about bringing criminal penalties against file sharers, many of whom are young people, as this will give them a criminal record which they will carry with them for their entire life. Instead, by having the government use civil enforcement, the unlawful actions can still be detered, but with fewer long-term consequences for what he sees as a youthful indiscretion.

This a reasonable concern, but a more straightforward fix would be to soften the criminal penalties in the No Electronic Theft act. If Congress is so worried about harsh punishments for file sharing, maybe they shouldn't have penalized the act with three years in prison.

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