Jail Time for File Sharer Bill Passes House

Internet file sharers and those who videotape first-run movies could do jail timeunder a bill approved by the U.S. House of Representatives this week.

“Today’s action by the House of Representatives will help thwart thewidespread theft of America’s intellectual property,” Motion PictureAssociation of America President and CEO Dan Glickman said in a statement.

“Digital film piracy is a menace that poses a dire threat to every Americanfilmmaker,” he maintained. “H.R. 4077 will provide law enforcement thenecessary tools to go after the heart of film piracy: illegal camcording ofmovies and the online theft of films on peer-to-peer networks or on similartechnologies.”

Livelihoods at Peril

“Without such legislative remedies, film piracy could have a disastrousimpact on the American film industry and put to peril the livelihoods of menand women who are employed in our industry,” he added.

Under the measure now before the Senate for action, anyone making anunauthorized recording of a motion picture in a theater could be fined andserve up to three years in prison for a first offense and up to six yearsfor a second offense.

The legislation also broadens what’s considered “criminal copyrightinfringement” under federal law to include infringement of a copyright byelectronic means “with reckless disregard of the risk of furtherinfringement.”

Dangerous Precedent

That provision, if it became law, would set a dangerous precedent, accordingto Philip Corwin, a partner with Butera Andrews in Washington, D.C., and alobbyist for Sharman Networks, distributor of the file-sharing programKazaa.

“It removes the need of prosecutors to show willful conduct and would putpeople in jail based on a negligence standard, which, when you read it, isdifficult to know when and where it might apply,” he told TechNewsWorld.

Also among the bill’s provisions is a $15 million appropriation to fundenforcement of the measure.

Uncle Sam Saddled With Tab

“The bill makes the U.S. Government responsible for paying for enforcing therights of copyright owners who have the financial wherewithal to enforcetheir rights in civil actions against copyright pirates,” A. Blair Hughes,an intellectual property attorney with McDonnell Boehnen Hulbert & Berghoffin Chicago told TechNewsWorld. “Clearly this provision could save copyrightowners millions of dollars.”

That boon to copyright holders may not be in the best interest of taxpayers,according to Fred von Lohmann, a staff attorney with the Electronic FrontierFoundation in San Francisco.

“Diverting $15 million of the Department of Justice’s budget to essentiallypay the entertainment industry’s lawyers’ fees strikes me as a particularlybad idea right now,” he told TechNewsWorld.

Litigating For Cash

“The lawsuits that the recording industry has been bringing, for example,are now breaking even,” he said. “The word that I hear is that they’rebeginning to make money on those lawsuits.”

“Whether you think those lawsuits are a good idea or not,” he continued,”there’s really no excuse for using the American taxpayer’s money tosubsidize that effort.”

Attempts to obtain a comment on the bill from the Recording IndustryAssociation of America were unavailing.

Selective Enforcement

Although the measure could put some teeth into the enforcement of copyrightinfringement statutes, it still is a dangerous law, argued Manny D.Pokotilow, a partner with Caesar, Rivise, Bernstein, Cohen & Pokotilow inPhiladelphia.

Based on his experience trying to obtain Department of Justice supportagainst criminal copyright infringers, he maintained that the agency justdoesn’t want to get involved. And that attitude will lead to selectiveenforcement of this kind of law.

“The Justice department will enforce this only when they’re told to do itfrom someone at the top,” he told TechNewsWorld. “This is going to be rarelyenforced by the Justice Department and only because there’s politicalmotivation.”

Dark Passage

Opponents of the bill were not only critical of its provisions, but of themethod of its passage. On the day the House acted on the legislation, it wasplaced on the “Suspension Calendar,” a launching pad for uncontroversialmeasures tagged for expedited House action.

“It’s criminal that Congress voice voted, with no discussion, a bill thatdoesn’t do a single thing to use the power of peer-to-peer technology toreward individual artists and songwriters and big music companies,” AdamEisgrau, executive director of P2P United in Washington, D.C.

“Everyone should be outraged,” he added, “by provisions slipped into thebill that allows ushers and theater managers to detain and question membersof the public suspected of recording movies and immunizes them from civiland criminal liability should things get a little rough.”

Ever Vigilant

With Congress aiming to adjourn next week and this measure not high on thelawmakers’ agenda, chances of passage seem dim, but opponents won’t let their guard down.

“We’re taking this bill very seriously because it’s a direct attack on ourcustomers,” Marty Lafferty, CEO of the Distributed Computing IndustryAssociation, a P2P industry group in Arlington, Virginia, toldTechNewsWorld. “Its clear intention is to get them to shun P2P and stopusing it.”

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