New US Anti-Piracy Bill..

[adam]

Morse2: The RIAA did not recently claim that copying a CD is criminal copyright infringement. Yes they did claim in a petition that it was not protected by Fair Use ACROSS THE BOARD but that does not make it a crime. At most it makes it a civil infringement. Actually that petition was filed by the RIAA, MPAA, and many other major businesses and it was a response filed to requests that the Copyright Office expressly recognize a right to backup CDs, DVDs, ect., under Fair Use. That same request has come three times before and the Copyright Office has denied it each time. The fact of the matter is that Fair Use DOES NOT allow backups. Backups are allowed for certain media, including CDs, under other provisions in copyright law. The response was basically saying that Fair Use was not the correct place to implement these legal changes. Honestly, I agree even though I do think you should be able to backup media you own.

InXess: Yes, just. As in it does just A and not B as opposed to both. If you think my use of this language belittles or downplays the amendments in this bill than you clearly did not read my post thoroughly.

[Morse2]

Hi DVDguy4;

>>>...Interesting article I must say. Maybe we all move to France. I know my wife would like that...<<<

Mine too.

Hi Adam;

Okay, I can accept that the RIAA was arguing that copying your own CD into your own HDD is a civil rather than criminal matter - under current law.

If this RIAA backed proposal passes, the 'noncommercial piracy' sections certainly do look like they'll criminalize things that are currently 'civil actions'. Thus, when I wrote that I was (sloppily) combining their 2 arguments in one sentence. Apologies.

Time to call my congresscritter again. Like Sam Clemens said (as closely as I can quote offhand) "When congress is in session, no man's life, liberty, or property is safe". This bill covers 2 of those 3 things lost, and I suspect the RIAA and MPAA would indeed favor a death penalty for "infringement".

All the best,
Morse

[adam]

Morse2, again there is "noconcommercial piracy" section in this bill. Noncommercial piracy is the general target of this bill and it is attacking this area through the creation of an FBI unit dedicated to it with substantial discovery and enforcement powers. THAT is the real meat of this bill and what scares me (actually its their budget.)

The only substantive changes are the creation of the crimes of attempt and conspiracy to commit copyright infringement. Nothing that was once a civil offense will be made a criminal offense.

[somebodeez]

I see it as a stepping stone and don't find attempts to downplay it comforting at all.

[adam]

For those who are interested you can read the entire text of the bill here: http://static.publicknowledge.org/pdf/ip-protection-act-2006-20060413.pdf

Much of the bill is just clerical, removing commas and rearranging thigs for clarity. As for the rest I can summarize it pretty briefly.

1) New criminal offenses: creates the crimes of attempt and conspiracy to commit copyright infringement.

2) Increased penalties: Basically doubles the maximum sentences for criminal copyright infringement across the board.

3) New Exportation right: Currently copyright owners can prevent infringing goods from being imported. The bill will give them the right to prevent exports as well.

4) DMCA definition addition for phrase, "traffic in": Currently the DMCA prohibits the trafficing in circumvention devices, but it does not define the phrase, "traffic in." The phrase will be defined in the bill as, "making, importing and exporting of such devices."

5) Extends forfeiture to civil infringent but is left permissible (they don't have to do it). It makes forfeiture for criminal infringement mandatory (was permissible before.)

6) Creates new FBI wing to deal exclusively with Computer Crimes and Intellectual Property.

[InXess]

Sadly in today's terms 1000$ threshold is way below average state of possession for most internet users (if I was to believe quasi-statistics popping up here and there). Say 200-500 or maybe 1000 MP3's (which is not a large number for most kids, practically every IPOD user) using 99 cents factor per song makes every college student a "commercial" criminal enterprise subject to prosecution.

Is carrying an MP3 player (e.g. 20 Gig IPOD) loaded with MP3's across the border "trafficking"?

It's all open to interpretation, so many ways to get you... it's like a Pandora's Box.

Adam, I'm stunned that as a lawyer you see so few problems with such legislation. In today's technology driven world it criminalizes the whole society (youth being first) and once implemented may have a huge ripple effect.
Criminal enterprise with 1000$ threshold? What a double standard... How about making a crooked stock broker subject to the same level making him a "criminal enterprise" instead of "confused individual". You don't see a legislative move here...

[ROF]

Sadly in today's terms 1000$ threshold is way below average state of possession for most internet users (if I was to believe quasi-statistics popping up here and there). Say 200-500 or maybe 1000 MP3's (which is not a large number for most kids, practically every IPOD user) using 99 cents factor per song makes every college student a "commercial" criminal enterprise subject to prosecution.

Is carrying an MP3 player (e.g. 20 Gig IPOD) loaded with MP3's across the border "trafficking"?

If you can prove you legally own all of them you have nothing to be concerned about. Music sold online today contains tracking data. It is very easy to determine where the songs came from. In terms of $1000, if I am correct, you also must consider any and all hardware into the equation and not just the copyrighted data value.

[adam]

Is carrying an MP3 player (e.g. 20 Gig IPOD) loaded with MP3's across the border "trafficking"?

No, importing and exporting mean bringing something into a country for sale. Furthmore the trafficking section of the DMCA refers to the traffickign of circumvention devices not infringing materials. Neither Ipods nor mp3s are circumvention devices. Possessing infringing mp3s is already a violation of copyright.

It's all open to interpretation, so many ways to get you... it's like a Pandora's Box.

Here is where you are totally off base. Please read the section of this bill that affects the DMCA. It imposes a definition for trafficking where before there was NONE. Trafficking is completely open to interpretation now and the bill will define it as manufacturing, importing and exporting. All of these terms are clearly and expressly defined in Title 17 already, so this particular change does the exact opposite of what you are complaining about.

Adam, I'm stunned that as a lawyer you see so few problems with such legislation.

Please show me where in this thread I suggested any such thing. The fact that I understand and can explain a bill doesn't mean I support it, it just means I read it. If someone mistakingly says a bill does something that it does not, I should be able to correct them without being accused of downplaying. I posted the text of the bill. If you disagree with my interpretation than that's fine but note that the only personal opinion I have expressed so far regarding this bill is that I find it "scary."

[somebodeez]

My apologies, Adam. I must've misunderstood you.

[ROF]

@Adam

So basically, if I read the bill correctly, it just criminalizes some of what is now considered a civil matter?

[adam]

No Rof, it does not criminalize any current civil offenses at all, though it does create two totally new criminal offenses. I listed what the bill does above already.

[ROF]

creates the crimes of attempt and conspiracy to commit copyright infringement.

aren't these civil offenses currently?

[adam]

No.

[ROF]

Well they should be. There is a tremendous amount of money lost to copyright infringement. If stiffer penalties and actual criminal charges are applied hopefully the off the scale increase in casual copyright violation will slow down. Some parts of this new bill seem to be a little too much but given the current state of copyright violation(some people have no idea their habits are copyright violations) something drastic must be done.

[dvdguy4]

Its all about the greed of excutives who havent been seeing their year end bonus dwindle. Money rules the world as does the entertainment industry.

[jagabo]

1) New criminal offenses: creates the crimes of attempt and conspiracy to commit copyright infringement.

So putting a book in a photocopier at the library will become a crime? Only if you copy too much?

[adam]

jagabo that is already a crime if done "wilfully" and in sufficient quantity ($1000 worth in any 180 day period.) I don't see what that example has to do with this bill.

[BJ_M]

Canadian Music Stars Fight Against DRM



"Some of Canada's best known musicians, including Avril Lavigne, Sarah McLachlin, Sum 41, and Barenaked Ladies, have formed a new copyright coalition. The artists say in a press release that they oppose file sharing lawsuits, the use of DRM, and DMCA-style legislation and that they want record labels to stop claiming that they represent their views."


http://www.musiccreators.ca/

http://www.musiccreators.ca/docs/Press_Release-April_26.pdf

[edDV]

Canadian Music Stars Fight Against DRM



"Some of Canada's best known musicians, including Avril Lavigne, Sarah McLachlin, Sum 41, and Barenaked Ladies, have formed a new copyright coalition. The artists say in a press release that they oppose file sharing lawsuits, the use of DRM, and DMCA-style legislation and that they want record labels to stop claiming that they represent their views."


http://www.musiccreators.ca/

http://www.musiccreators.ca/docs/Press_Release-April_26.pdf

I'll believe that when I see their full songs available for download on their websites. Other than that, it is only a PR strategy.

[BJ_M]

opposing file sharing lawsuits, the use of DRM, and DMCA-style legislation doesnt mean automatically that they would make full song available for download - though in fact, many of those listed do so now anyway .... Neil Young's new album in fact is completely available for download starting Friday as an example ...

[BobK]

Well they should be. There is a tremendous amount of money lost to copyright infringement. If stiffer penalties and actual criminal charges are applied hopefully the off the scale increase in casual copyright violation will slow down. Some parts of this new bill seem to be a little too much but given the current state of copyright violation(some people have no idea their habits are copyright violations) something drastic must be done.

Perhaps we should all write congress and demand the death penalty for attempt and conspiracy to commit copyright infringement. Would that be drastic enough? Or should we include suspected attempt and conspiracy to commit copyright infringement and just skip the trial.

[ROF]

Well they should be. There is a tremendous amount of money lost to copyright infringement. If stiffer penalties and actual criminal charges are applied hopefully the off the scale increase in casual copyright violation will slow down. Some parts of this new bill seem to be a little too much but given the current state of copyright violation(some people have no idea their habits are copyright violations) something drastic must be done.

Perhaps we should all write congress and demand the death penalty for attempt and conspiracy to commit copyright infringement. Would that be drastic enough? Or should we include suspected attempt and conspiracy to commit copyright infringement and just skip the trial.

Unfortunately the death penalty is a just an excuse for a larger bureacracy. I don't think it would be effective. I also do not believe the death penalty is warranted for copyright infringement. One thing is for certain is that fines and civil penalties have not stopped or slowed the rampant increase in the way piracy has grown over the last decade. Technology has made it so transparent some people actually believe they have a right to own something which they have not paid full value for. These thieves don't think of it as stealing because they aren't breaking into someones store front. Afterall the sign does say, "Rent all you can consume."

[InXess]

Adam, no one here is more qualified to analyze legal stuff as much as you.
I'm not aiming at you but frankly expected to see a closer to real life possible implications of this Act. "Scary" is not enough, and if it is I wonder what in particular scares you as a professional.

What scares me is the fact that by setting a $1000 limit they are clearly saying that their target is not as you say "manufacturing, importing and exporting" as no commercial outfit whether legal or illegal would limit themselves to such value. $1000 shows without any ambiguity that their target is an average Joe. In that sense EVERYONE may be subject to trafficking charges. I'm sure that we both, as well as all other reading that, know that. I see no other purpose for such provision.

1) New criminal offenses: creates the crimes of attempt and conspiracy to commit copyright infringement.

Here the question is what would constitute an attempt and how do we understand a conspiracy. If you connect both with the limit (above) than I suspect there's VERY FEW members of this forum who could successfully defend against such charges.

With P2P so prevalent one has to assume that there's someone who benefits from it. I hear voices here saying "it's everyone but me" but the truth is that it'll be awfully difficult to explain such widespread DVD, CD backup subjects occurrences in this forum if not for other then legitimate uses. Anyone who I know who can afford huge DVD collection (going in 1000's) would never have time or willingness to research the subject here. In fact no one that belongs to that category (in my little circle) would know how to backup a DVD. They just buy a new one if disk gets damaged. No one bothers with backing up anything. That's why we have stores. I think I made my point...

In real world, because of the above, there will be a lot more people subject to possible prosecution that some would be willing to admit (at least here). Again "trafficking" (however we define it) combined with $1000 threshold gives a lot to think about. What do you think, do they target $1000 start-ups?

All of this smells really rotten to me. Without a doubt this act is constructed to keep all doors open allowing to custom fit any prosecution attempt. I smell a hidden agenda here that we may learn about after it's put to work. Then it'll be too late...

[adam]

What scares me is the fact that by setting a $1000 limit they are clearly saying that their target is not as you say "manufacturing, importing and exporting" as no commercial outfit whether legal or illegal would limit themselves to such value.

You are mixing and matching totally different laws. Forget about the $1000 limit. That is not a part of this bill and it has NOTHING to do with the DMCA or its proposed definition for trafficking. The $1000 base is the current threshold for criminal copyright infringement. The law today says that civil copyright infringement can rise to the level of criminal copyright infringement if it is done willfully (that is the main thing that prevents Joe Blow from being prosecuted) and either for commercial profit or if the items copied total $1000 within any 180 period.

Again, the proposed definition applies to the DMCA's prohibition on circumvention devices. If you refer back to my description of what trafficking will be defined as, no I do not think the average Joe Blow or even user of this site has all that much to worry about here. Most of us are not selling decryption/hacking devices and most of us are not manufacturing them, therefore we are not trafficking. What we could often be held liable for is using such devices to bypass protection mechanisms, and that is already prohibited by the DMCA. This has nothing to do with this proposed bill.

Here the question is what would constitute an attempt and how do we understand a conspiracy. If you connect both with the limit (above) than I suspect there's VERY FEW members of this forum who could successfully defend against such charges.

Well as I mentioned, the limit (above) is inapplicable, but these additional charges are indeed part of what scares me about this bill. Since this is Federal Law, attempt and conspiracy are well defined and thoroughly tested through case-law. To be attempt, all but the last element of the crime must be accomplished. All or at least the vast majority of the preparation for the crime must be done, and the crime thwarted in some manner. If you voluntarily cease your actions it is not attempt, unless you are ceasing for ignoble means (looks too risky.) For conspiracy there must be an agreement between at least two parties to commit the crime and any one of the conspirators must take some step to begin the crime.

Now the reason this scares me is because we are dealing with a virtual crime scene. Its not like in the real world where its not a conspiracy until one of the guys goes out and buys the gun, a step that would literally be enough for most people to have second thoughts. All it might take to begin the conspiracy is a click of a mouse button.

What also scares me is the creation of the FBI wing to work exclusively on these types of cases. I think the FBI uses enough resources on combatting copyright infringement already and I think they already do a good enough job.

I can't say that I am particularly scared of the increase in criminal penalties since they will almost always be reserved only for the most heinous repeat offenders. I don't think the increase is necessary or even helpful, however.

I'll tell you what does not scare me in the least bit is the part that effects the DMCA by defining "trafficking in," because that seems to me to be the same definition that courts are already applying and it seems to be fair and logical enough to me. Remember, the DMCA already makes it illegal to "traffic in circumvention devices." The question is what does "traffic in" mean? I don't think defining it is a bad idea and I don't think the proposed definition is unreasonable.

[InXess]

Now the reason this scares me is because we are dealing with a virtual crime scene. Its not like in the real world where its not a conspiracy until one of the guys goes out and buys the gun, a step that would literally be enough for most people to have second thoughts. All it might take to begin the conspiracy is a click of a mouse button.

That's exactly what I'm talking about. Examples that I've included may not be 100% compatible (that would require extensive research into not only the proposed law but also existing statutes and case law, way too much for one evening...). I was trying to paint some simple scenarios where the unsuspecting party may get into a collision with the law and until the later phase would not really fathom what is the extent of possible penalty associated with it.

The combination of few elements that I pointed out (perhaps naively) is still a very frightening scenario. Considering that RIAA run on P2P users for damages may be now substituted with harsher criminal penalties makes it tough to swallow. As it was raised here the proportionality of offence to punishment is of principal concern.

I'm not impressed with an American justice system, that is known for some really bizarre and disconnected verdicts, I fear that this act together with existing legislation is like giving a loaded gun to a 3 year old. I would be willing to take your position that daily practice may be somewhat mitigating but my gut tells me otherwise.