'Pirate Act' raises civil rights concerns

by Guest Contributor | May 26, 2004 1:44:00 PM

Takeaway: The Senate could vote as soon as next week on legislation that would let federal prosecutors file stiff civil lawsuits against suspected copyright infringers.

By Declan McCullagh
Staff Writer, CNET News.com

File swappers concerned about getting in trouble with record labels over illegal downloads may soon have a major new worry: the U.S. Department of Justice.

A proposal that the Senate may vote on as early as next week would let federal prosecutors file civil lawsuits against suspected copyright infringers, with fines reaching tens or even hundreds of thousands of dollars.

The so-called Pirate Act is raising alarms among copyright lawyers and lobbyists for peer-to-peer firms, who have been eyeing the recording industry's lawsuits against thousands of peer-to-peer users with trepidation. The Justice Department, they say, could be far more ambitious.

One influential proponent of the Pirate Act is urging precisely that. "Tens of thousands of continuing civil enforcement actions might be needed to generate the necessary deterrence," Sen. Orrin Hatch, R-Utah, said when announcing his support for the bill. "I doubt that any nongovernmental organization has the resources or moral authority to pursue such a campaign."

The Pirate Act represents the latest legislative priority for the Recording Industry Association of America (RIAA) and its allies, who collectively argue that dramatic action is necessary to prevent file-swapping networks from continuing to blossom in popularity.

"We view this as a key component of an enforcement package," RIAA lobbyist Mitch Glazier said Tuesday. "If you're going to try to make sure that you have effective deterrence, then one of the tools you'll need is to make sure that prosecutors have flexibility."

Foes of the Pirate Act have been alarmed by the unusual alacrity of the proposal's legislative progress. It was introduced just two months ago, on March 25, and not one hearing was held before the Judiciary committee forwarded it to the full Senate for a vote a month later.

"This was an attempt to move it in a stealthy manner," said Philip Corwin, a lobbyist for Sharman Networks, which operates the Kazaa network. "I can't imagine that (Hollywood lobbyist) Jack Valenti or (RIAA chairman) Mitch Bainwol really wants to come before Congress and give testimony saying, 'We can't afford to bring these lawsuits. That's why we want the taxpayer to pay for them.' I can't believe they want to do that in public."

Potential P2P prosecutions
Underlying the public jockeying over the Pirate Act is a classic political war of wills between the federal government's legislative and executive branches.

Under a 1997 law called the No Electronic Theft Act, federal prosecutors can file criminal charges against peer-to-peer users who make a large number of songs available for download. A July 2002 letter from prominent congressmen to U.S. Attorney General John Ashcroft urged the prosecution of Americans who "allow mass copying from their computer over peer-to-peer networks."

But not one peer-to-peer criminal prosecution has taken place in the United States. The Justice Department has indicated that it won't target peer-to-peer networks for two reasons: Imprisoning file-swapping teens on felony charges isn't the department's top priority, and it's always difficult to make criminal charges stick.

The Pirate Act was crafted to respond to the Justice Department's concern. "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," Sen. Patrick Leahy, D-Vt., said in March. "Prosecutors can rarely justify bringing criminal charges, and copyright owners have been left alone to fend for themselves, defending their rights only where they can afford to do so. In a world in which a computer and an Internet connection are all the tools you need to engage in massive piracy, this is an intolerable predicament."

The RIAA's Glazier said: "The idea was to give prosecutors the flexibility to decide whether to bring a civil case against somebody. Giving them a criminal fine with a criminal record was viewed as a fairly harsh penalty for the activity...You're still committing a crime. But (prosecutors) are given a flexible remedy so there's some proportionality."

For copyright holders, there's an additional bonus. Unlike when the RIAA files its own lawsuits against peer-to-peer users, such as the 493 defendants it announced this week, the Justice Department likely would be able to seek wiretaps to collect evidence about P2P infringement. Current wiretap law says electronic communications may be intercepted when a potential federal felony is being investigated.

"Corporate copyright welfare"
In addition, the Pirate Act gives Ashcroft six months to "develop a program to ensure effective implementation and use of the authority for civil enforcement of the copyright laws" and report back to Congress on how many civil lawsuits have been filed. The Justice Department would receive an extra $2 million for the fiscal year beginning in October.

"It represents yet another point in another very long line of major corporate copyright interests pushing for and receiving what amounts to significant corporate welfare," said Adam Eisgrau, a lobbyist for the P2P United trade association. "This legislation literally offloads the cost of enforcing copyrights traditionally borne by the copyright holder onto the federal government and therefore the taxpayers."

Last week, the Pirate Act had been considered for a floor vote under a process normally restricted for noncontroversial measures. But the vote didn't happen, which one foe of the bill attributed to opposition from Sen. Norm Coleman, a Republican from Minnesota.

Coleman has slammed the RIAA in the past for going too far in its fierce legal campaign against individual file swappers. A representative was unable to confirm Tuesday whether Coleman had placed a "hold" on the bill.

Critics also charge that the Pirate Act may invent a form of double jeopardy: It would let the RIAA sue the same people already sued by the Justice Department.

"The kinds of things we have a double-jeopardy doctrine to prevent seem to be implicated by the bill," said Jessica Litman, author of "Digital Copyright" and a law professor at Wayne State University. "I find it disturbing that the committee reported this out without at least having a hearing to consider some of the alternatives."

The RIAA points out that the bill does limit damages it can collect in a subsequent lawsuit, but opponents of the proposal said they weren't convinced.

"Why should someone be sued by the government and then be subject to a second lawsuit brought by a private party?" said Corwin, the Sharman Networks lobbyist. "The RIAA is settling most of these lawsuits. What's the Justice Department's policy going to be?"

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