Prometheus 6

Congress Moves to Criminalize P2P By Xeni Jardin
04:00 PM Mar. 26, 2004 PT

Congress appears to be preparing assaults against peer-to-peer technology on multiple fronts.

A draft bill obtained by Wired News, recently circulated among members of the House judiciary committee, would make it much easier for the Justice Department to pursue criminal prosecutions against file sharers by lowering the burden of proof. The bill also would seek penalties of fines and prison time of up to ten years for file sharing.

In addition, on Thursday, Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont) introduced a bill that would allow the Justice Department to pursue civil cases against file sharers, again making it easier for law enforcement to punish people trading copyright music over peer-to-peer networks. They dubbed the bill "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004," or the Pirate Act.

The bills come at a time when the music and movie industries are exerting enormous pressure on all branches of government at the federal and state levels to crack down on P2P content piracy. The industries also are pushing to portray P2P networks as dens of terrorists, child pornographers and criminals -- a strategy that would make it more palatable for politicians to pass laws against products that are very popular with their constituents.

In defending the Pirate Act, Hatch said the operators of P2P networks are running a conspiracy in which they lure children and young people with free music, movies and pornography. With these "human shields," the P2P companies are trying to ransom the entertainment industries into accepting their networks as a distribution channel and source of revenue.

"Unfortunately, piracy and pornography could then become the cornerstones of a 'business model,'" Hatch said in a statement. The illicit activities of file sharers "then generate huge advertising revenues for the architects of piracy."

The Recording Industry Association of America and the Motion Picture Association of America welcomed the Pirate Act.

"I commend Senators Patrick Leahy and Orrin Hatch for their vision and leadership in combating the theft of America's creative works," said Jack Valenti, MPAA's chief executive.

"This legislation provides federal prosecutors with the flexibility and discretion to bring copyright infringement cases that best correspond to the nature of the crime," said RIAA chairman and CEO Mitch Bainwol.

So far in 2004, Leahy has received $178,000 in campaign contributions from the entertainment industries -- the second-biggest source of donations to Leahy behind lawyers. Hatch has received $152,360.

The draft bill obtained by Wired News circulated among intellectual property subcommittee members in the House of Representatives. The document, titled "Closing the P2P loophole in 17.U.S.C. Section 506," was drafted in coordination with the Justice Department in response to concerns that federal prosecutors lack sufficient legal powers to go after serious abusers, people close to the matter said. They also said they believe Lamar Smith (R-Texas) is willing to propose the bill if he can find co-sponsors.

If the draft becomes law, anyone sharing 2,500 or more pieces of content, such as songs or movies, could be fined or thrown in jail. In addition, anyone who distributes content that hasn't been released in wide distribution (for example, pre-release copies of an upcoming movie) also would face the penalties. Even a single file, determined by a judge to be worth more than $10,000, would land the file sharer in prison.

Whether the leaked draft will be put forth as legislation remains unclear, and Smith's press secretary Christopher Chichester declined to comment.

Smith has received almost $25,000 this year from the music, movies and TV industries.

"This was not put together by our staff," said House Judiciary Committee spokesman Jeff Lungren. "But the intellectual property subcommittee is working on text to address the problem of digital piracy prosecutions, and it looks like this was one suggested iteration."

In response, P2P United, an organization that represents software companies that run file-sharing networks, asked the subcommittee in a letter hand-delivered to Smith on Friday to put off enacting new laws aimed at punishing file sharers and instead explore ways in which copyright holders can be paid through P2P networks.

"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," said Philip Corwin, an attorney with Butera and Andrews in Washington D.C., and who represents Kazaa distributor Sharman Networks. "The Pirate Act effectively gives government the authority to use taxpayer dollars to bring civil actions against file sharers on behalf of copyright holders."

All these efforts by Congress to impose severe penalties are misguided, said P2P United Executive Director Adam Eisgrau.

"As the 40 percent increase in downloads over the last year makes alarmingly clear, like it or not file sharing is likely to (continue) on a massive scale no matter how many suits are brought and what the fine print of copyright or criminal law says," Eisgrau said. "Second, putting a tiny percentage of tens of millions of American file sharers behind bars or in the poorhouse won't put one new dime in the deserving pockets of artists and other copyright owners."