May 26, 2004 4:00 AM PDT

'Pirate Act' raises civil rights concerns

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.


What's new:
A proposal that the full Senate could vote on as early as next week would let federal prosecutors file civil lawsuits against suspected copyright infringers.

Bottom line:
Copyright lawyers and lobbyists for peer-to-peer companies, who have been eyeing the recording industry's lawsuits against peer-to-peer users with trepidation, warn that the Justice Department could be far more ambitious.

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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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Posted by (1 comment )
Reply Link Flag
The term "pirate" in relation to digital copying is a misnomer which reveals propaganda at work. When a real pirate steals something from you, you no longer have it in your possession. Furthermore, it's stolen under a direct threat of harm. Making files available for others to freely copy neither removes a tangible item from someone nor takes place by a direct threat to someone. The agents of big corporations swooping down on individual file swappers exhibit pirate-like behavior. The government's role in granting monopoly power through copyright law and then strictly enforcing it with severely disproportionate fines should be challenged. The term "copyright" itself is a misnomer and should more properly be called "copymonopoly" since that's what's actually being granted by government. The right to copy is being denied.
Posted by ComputerGuy0 (2 comments )
Reply Link Flag
This won't work.
This is not going to work. All they are going to do is cause a bunch of law suites to stop it and if that fails it will push the whole thing deep under ground with people creating P2P programs specifially designed not to show any information that could be used to indentify a user, including the much popular IP address. Instead of one or two or three large P2P communities you will have a bunch of smaller ones. If the governement can't identify a user they can't file charges.

Frankly I don't think the enforcing of copyright lawsuites falls to the governement, it is the job of the copyright holders. It always has been and always should be.

Then you have the problem of someone trying to download a demo or a sample and it turning out to be not what it is labeled. How is one supposed to know if something marked Photoshop CS Trial is really that is it is the full real program. If it is, then how is that the the fault of the person that downloaded it. If this was to turn out to be a defense "I am so sorry it said it was the trial version and that is all that I was after." Then all that people have to do is start mislabeling things. That should make a fun and interesting mess for the government.

Also, as the law is writen you can only get in trouble when you have more $1000 in copyrighted property in your share folder. At $1 per song, that means you could share 999 songs without getting in to trouble or Adobe Photoshop CS and a couple of games. If you have 4 computers with each one with 999 songs you are still find as each computer's share folder only has $999 in copyrighted songs.

Then you will have the people that just to spite everyone will start pirating to make a point. People that wouldn't have done it otherwise. Frankly I think this is a pandora's box.

Posted by (336 comments )
Reply Link Flag
funny when the indivual does its piracy
When corporations give away jobs its free trade and when people give away free music or movies it called piracy. We need some consistacy here.

Kerry 2004
Posted by cpudrewfl (56 comments )
Reply Link Flag
You mean like consistency of an argument?
Making copies of the intellectual property of others and distributing the copies is theft and yes, piracy. The governments involvement in this issue should not go unchallenged. Companies like the RIAA have the right to go after such thieves, but the inclusion of our government into this is draconian to say the least.

Kerry 2004

Well, that explains your support of piracy and your giving away jobs comments.
Posted by DataHaunt (1 comment )
Link Flag
We the corporations....
Corporations control the intrests of the usa. No consumer rights at all. What happened to the 'We the people...' part.

Another great piece of legislature: raise the patent app cost and cut out the little guys and startups. Why not add in a clause to stop these patent squatters from getting patents with the only intention of suing others and never producing a product or creating a single job with them. Software patents and business process patents are flawed does anyone at the PTO really verifiy prior art or just prior patents?
Posted by (1 comment )
Reply Link Flag
constitutional rights bypassed?
For some time now I have had growing misgivings about the notion of a government suing its citizens. In particular, I don't see any meaningful difference between a suit by the government and a criminal prosecution, except that in a criminal case the doctrine of presumed innocence applies, thus requiring proof "beyond reasonable doubt".

This particular law, permitting civil action by government on matters covered by criminal law, seems to substantiate them. If it's a crime, then it should be a criminal case; if it's a tort, it should be a civil case, prosecutable by the injured party and not by the government on their behalf.
Posted by brianmthomas (8 comments )
Reply Link Flag
A sad day when...
Your rights are slowly being whittled away by corporate interests, our governing officials are very EASILY bought, government is for the corporation, by the corporation etc etc....Until I can get back gainfully employed I will continue to exercise my rights to free speech and freedom of expression
Posted by zincmann (153 comments )
Reply Link Flag
Message has been deleted.
Posted by Migraine (95 comments )
Link Flag
"Bill outlaws internet useage."
That is essentially what this bill does. Take for example a website which copyrights all of it's webpages, with the words "All rights reserved." attached to the copyright notice. Now, take into account that if you use a windows computer, that web page has just been downloaded to your computer by default. Under this law, you have just committed copyright infringement. Unless you can find a copyleft page, a page free of copyrights, or a page which allows for fair use purposes, or just not use windows (like that'll ever happen) then you commit copyright infringement simply by looking at copyrighted material on the internet. If this computer was mine, I'd throw it out the window, because pretty soon, computers will be outlawed too.
Posted by virus00 (3 comments )
Reply Link Flag
You can look but you can,t touch
You can look but you can,t touch what a life. The record companies behaving like spoiled children in a sweetie shop will nothing change.I,m fed up with them because they let little real music come to the publics attention.Just more boy/girl groups with nary a brain cell between them is this what the publik want nothing bands producing zero music. And they are willing to goto court over this let them.
Posted by (1 comment )
Reply Link Flag
Posted by (2 comments )
Reply Link Flag
Another step
RIAA is trying to add a new power on its behalf for fighting against peer to peer users. As canadians have accepted peer to peer as a legal way to share music among particulars. Of course, sharing music for selling it after must be illegal, but sharing culture for private use, must be a right. But RIAA, watches this as a lost of its benefits.
Posted by (2 comments )
Reply Link Flag
Big Brother
Unfortunately, this just seems to be another example of Big Brother at work. While the RIAA gets more aggressive, they are only alienating consumers and creating filesharers who will come up with better and stealthier P2P programs. Instead of embracing P2P technology and the Internet, they are and other corporations are creating online services that all use different codec (so you have to buy a certain MP3 player). In all this rush to protect themselves, the RIAA has forgotten music lovers, not to mention musicians. And, if I'm not mistaken, the RIAA has gotten caught with their hands in the cookie jar at least twice in the last couple of years. So who's really the pirate?
Posted by ErinSpirit (1 comment )
Reply Link Flag

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