Making The Justice Dept. A Copyright Busybody

poptones writes "The Senate Judiciary committee has just approved four new bills relating to IP law in the U.S. A couple of them provide some much needed reforms for the patent process including raising fees, raising fees more for those who most use the system, and providing discounts for small entities (who'da thunk?)" According to poptones, "Unfortunately, all is not good" -- read on below to see how the RIAA and MPAA stand to gain from one of these bills in particular.

This bill, put forward by your friends and mine, Msrs. Leahy and Hatch, would task the JD with filing civil actions against "pirates" - essentially putting your tax dollars to work bringing civil actions against college students in the name of the very largest Copyright holders, allowing them even more spare pocket change to spend lobbying to restrict your already shrinking online freedoms. A choice snippet from the floor: "For too long, 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..."

And it gets better: "In the long run, I believe that we must find better mechanisms to ensure that our most vulnerable citizens--our children--are not being constantly tempted to infringe the copyrights that have made America a world leader in the production of creative works." Hold on to your wallets folks, they're telling us to "think of the children" again..."

Re:Can the "little guy" benefit from IP?

[Aneurysm9]

The small entity reduction is for patent fees, and is nothing new. Small entity fees have been half the normal filing fee for quite some time. As for small organizations enforcing their copyrights, that's a good question. Certainly, none of use has the resources that the RIAA does to bring 2500+ lawsuits (without and significant progress on any of them) but, at least for violations hosted by reputable ISPs section 512 [cornell.edu] should provide some ammo.

Re:Let the endless arguement begin. Good vs Evil

[josh3736]

For the last time:

IT IS NOT *THEFT*!!!

It is copyright infringement. Plain and simple. I have not walked into the studio and taken the physical property of the artist. Still think its theft? Dictionary.com [reference.com]:

To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief.

Copyright infringement doesn't meet all of those conditions. When I download something, I have not removed "every part of the property" -- you still have your copy, and so does the artist, the studio, etc.

So please, stop spreading the propoganda. It's not theft.

Re:Wait a minute....

[turnstyle]

It's kinda funny -- when the RIAA wants a tax to pay off the RIAA, it's a BAD thing. When the EFF wants a tax to pay off the RIAA [eff.org], it's a GOOD thing.

Oops - make that 0.95% per year.

[mosel-saar-ruwer]

Sorry.

Re:wouldn't that benefit the GPL?

[Bob9113]

I think this could be indeed a useful law in the future, if used by us GPL lovers. What do you think?

First a clarification: This potential law is about civil law enforcement by the government.

And for the opinion, since you asked: The government should never under any circumstances take a side in a civil dispute. The entire concept of the distinction between civil and criminal disputes is that in civil law, person A is 51% right and person B is 49% right, and noone knows before the end of the case which side is which. This is referred to as "preponderance of evidence". Given that, which side should the government be backing in a given civil dispute? Neither.

Criminal law is the sole domain of government law enforcement.

Summary of Bills

[vyrus128]

Since Slashdot's summary is not very helpful, as usual, here is a brief summary of my reading of the four bills. IANAL.

Protecting Intellectual Rights Against Theft and Expropriation Act of 2004
This is the so-called PIRATE Act previously Slashdotted [slashdot.org]. Note that the "related bill" mentioned in that posting does not seem to have materialized yet; it does not seem to be any of the four posted here.

The main thrust of the PIRATE Act is to allow the Attorney General to bring civil actions against copyright violators; before only criminal actions were possible (civil suits had to be filed by the copyright owner). I find it difficult to tell without going and reading Title 18 whether all the money resulting from the suit goes to the copyright owner, but some of it definitely does ("and restitution to the copyright owner"). There's some administrivia in the bill as well, but it seems to do what it claims to.

Artists' Rights and Theft Prevention Act of 2003 (ART Act)
The official title of this bill says it all: "A bill to provide criminal penalties for unauthorized recording of motion pictures in a motion picture exhibition facility, to provide criminal and civil penalties for unauthorized distribution of commercial prerelease copyrighted works, and for other purposes." There's some weird stuff going on with it on Thomas; the entire bill seems to have been rewritten at some point, but the number retained. I can't tell how many of the changes, if any, were substantive.

The HTML on the revised bill is broken, but reading the original version, it makes use (but not posession) of camcorders, cameras, and other "audiovisual recording device[s]" in a theater illegal, with a penalty of "not more than 3 years" in prison, or 6 years for a second or subsequent offense. It also sets a minimum value for "prerelease" copyrighted works, which includes movies not out of theaters yet; the assumed minimum for P2P'ing such a work is 10 copies and a total retail value of $2500. Note that this bill specifically targets P2P filesharing; it makes reference to "making [the work] available on a computer network accessible to members of the public who are able to reproduce the work through such access." That last bit seems written to exempt streaming, but I'm sure you'd be ruled against in court if you tried it.

There's also an easy-to-miss bit at the end of the bill which recommends "amend[ing] the Federal sentencing guidelines, as necessary, to provide for increased penalties for offenses involving the illegal reproduction and distribution of works protected under title 17."

United States Patent and Trademark Fee Modernization Act of 2003 2004
This one is straightforward and is as described in the posting; it increases patent fees across the board (I can't tell how much without looking at the stuff it amends.) It also allows "small entities" to get a 75% cost savings if they file electronically, and adds "maintenance fees" at 4, 8, and 12 years from filing to keep the patent from expiring early. Sounds sketchy, but I'm not complaining. There's also some stuff about trademarks, which probably doesn't matter much.

Cooperative Research and Technology Enhancement (CREATE) Act of 2004
I don't know why this one was even included. It doesn't really seem relevant to anything; it makes some changes to the definition of "prior art," but it only seems to apply to things developed under a "joint research agreement," so I don't think there's any way it can be other than what it claims, which is "A bill . . . to promote cooperative research involving universities, the public sector, and private enterprises."

Senator Leahy's words on this

[wytcld]

Dear Mr. [me]:

Thank you for contacting me about intellectual property protections. Although we disagree on this issue, it is good to
hear from you.

Throughout my career, I have been concerned about the theft of intellectual property and the effect it has on
innovation. Protection of digital content is just one aspect of this effort. On March 23, 2004, the Senate Judiciary
Committee held a hearing on physical piracy, entitled "Counterfeiting and Theft of Tangible Intellectual Property:
Challenges and Solutions," at which the Committee examined the harmful effects of stealing another's creation.
Reasonable estimates show that the U.S. economy loses between $200 billion and $250 billion annually to piracy and
counterfeiting. At that hearing the Committee heard from a representative of Burton Snowboards, which employs 350
people in Vermont. That witness reported that knock-off Burton products have been found in multiple countries, and
fake goods often turn up on internet auction sites.

The improper use of Burton's trademarks is illegal, it is unethical, and it robs the company of revenues it should
rightfully reap but that others siphon off. In the 104th Congress, I introduced the Anticounterfeiting Consumer
Protection Act of 1995, which gave law enforcement additional tools to fight counterfeiting and which became a public
law. I am currently looking at additional legislation that would help hard working Vermonters protect the goods they
produce.

Likewise, downloading music without paying for it, and without the copyright holder's permission prevents artists,
authors, musicians - and those that work behind the scenes to produce creative content - from realizing the benefits
they deserve.. In order for the promise of new technologies to be fully realized, high quality digital content needs
to be easy to use and portable, and I am glad to see that several companies are now offering legal alternatives that
are meeting with success. This is a development I continue to encourage.

While illegally downloading music is wrong, I do not think that handcuffs for copyright infringers should be the
government's only option. That is why, on March 25, 2004, I introduced the "Protecting Intellectual Rights Against
Theft and Expropriation (PIRATE) Act." I do not believe in a "one size fits all" system of justice, and the PIRATE Act
will provide needed flexibility by allowing the Justice Department to pursue civil penalties for copyright infringement
when criminal penalties are not appropriate.

Thank you again for contacting me about this important issue, and please keep in touch.

Patrick Leahy
United States Senator

http://leahy.senate.gov /

Since counterfeit snowboards seemed totally off the wall to me, here was my reply:

Dear Senator Leahy:

Thank you for your response. It does not, however, show consideration of
many of the most pressing issues in "intellectual property." Please detail
what you are doing to:

- Roll back copyright terms to the reasonable period envisioned by the
writers of the Constitution

- Allow Web "radio" to have the same rights to broadcast music as
over-the-air stations, without the additional fees for using the music
which are currently assessed, which only serve to enforce the broadcast
monopolies while restricting artist access to the public

- Preserve the "fair use" rights that have long been in copyright law
against the large corporations working to remove or negate them through
using encryption technologies

- Undo the chilling effects of the DCMA on free technological development,
where it prevents normal testing and reverse-engineering of encryption
schemes

- Restore restrictions on the number of radio or television stations that
may be owned by any single corporation (surely you are aware of the
political disaster that results f

Re:No

[turnstyle]

"A tax on copyright holders (those that have an income stream from customers of those copyrighed works, at least) will simply be accounted for as a business cost and added to the price their customers pay."

Needless to say, there's already a tax on copyright holders for money that they make off their copyright -- it's called "income tax."

Title 17, section 506 - Criminal Offenses

[jvv62]

Thought that quoting the statute [cornell.edu] might increase the S/N ratio. This is the section that outlines criminal offenses. You need to have more than $1,000 worth of stuff copied in 6 months. So even if the RIAA/MPAA are not big on fair use, ripping one or even fifty CDs is not going to get the Government on your case.

Sec. 506.-Criminal offenses

(a) Criminal Infringement. -

Any person who infringes a copyright willfully either -

for purposes of commercial advantage or private financial gain, or

by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18 , United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

(b) Forfeiture and Destruction. -

When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords.

(c) Fraudulent Copyright Notice. -

Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Re:Not sure this is constitutional

[dartmouth05]

Standing is given to the Department of Justice via the statute proposed by Senators Hatch and Leahy. Article III, Section 2 of the US Constitution would appy if the DOJ tried to take civil action against pirates without this statute in place.

Re:Why civil suits

[Kiryat Malachi]

One more note:

The government rarely brings civil cases. Criminal cases are "The People vs. XXXX", as the people are the ones who were harmed, and are always brought by the government.

Civil cases are always "XXX vs. YYY", and are always brought by individuals (legally, corporations are individuals, which is why I don't need to qualify that statement). The government does not bring civil suits, for the most part, except when the harm was done to them.

Email your Senate critters

[BCW2]

I emailed both of mine and one from a previous state I lived in. I did the third because I know him and think he is fairly honest. If that gets three nay votes I'll take it. Sometimes congresscritters do the right thing either; by mistake or if enough pressure from voters is applied.

The 3 of them know that I'm a veteran and I vote!

It is

[jizmonkey]

You are right when you say a person needs standing, but the justice department in this case would be acting on behalf of the U.S. government. You can ask your con law professor why this is different. (Civil actions by the government are very common - securities actions, environmental actions, etc.)