A bill authored by Attorney General Alberto Gonzales that would stiffen criminal penalties in copyright cases has sparked a furor, but if history is any indication it may face a tough haul in Congress.
Before the Intellectual Property Protection Act of 2007 can even go to Congress, it will need to be sponsored by a member of the House or Senate. The Justice Department has yet to find a sponsor, although it's hoping that a meeting with Hill staffers will flush one out. And while the DOJ claims to have bipartisan support for its bill, a similar measure introduced last year failed to make it to a vote.
"We're still reviewing the bill, but based on our initial review, we have some concerns," said Corynne McSherry, a staff attorney with the Electronic Frontier Foundation. "One of our biggest concerns is that it criminalizes attempted copyright infringement."
McSherry said this is unprecedented in copyright law, and noted that the bill is ambiguous: "It’s not totally clear what would count as attempting copyright infringement."
Essentially, the bill would turn copyright law into something more akin to existing drug laws: The government could seize personal property, wiretaps would become legal for the first time, violators could face life in prison and, in an ambiguous and far-reaching provision, the mere attempt to violate a copyright would become a crime.
The Intellectual Property Protection Act of 2007, proposed by Gonzales on Monday, would amend current U.S. copyright law to give the government far more power to investigate and prosecute cases, expand the scope of what constitutes a criminal act, and would stiffen penalties, including adding life terms for those whose activities cause death.
Among the proposed changes, the bill would make it easier to charge someone as a repeat offender and stiffen the penalty for recidivism. It would expand forfeiture provisions to allow the government to seize any property used in the commission of a crime -- a PC, a home, cash on hand.
Exporting pirated material would also become a crime and the bill would grant the feds wiretapping authority, which it currently lacks. The "attempt" provision, stipulating that mere intent constitutes a crime, means that the law could conceivably be expanded to interpret a computer full of music next to a spindle of blank CDs as an act of piracy.
The legislation’s most eye-catching provision dramatically increases the penalties for criminal activities that cause harm or death -- such as hawking bogus Lipitor or adding a fake "UL" logo to a power cable that doesn't meet Underwriters Laboratories' safety standards. Actions that knowingly or recklessly cause bodily harm would result in jail terms of up to 20 years, while those causing death could send a defendant away for life.
Speaking on background at a conference call Monday, a senior Justice Department official noted that the penalty provision could include all manner of pirated goods "from counterfeit pharmaceuticals, counterfeit auto parts, aircraft parts -- anything, really, that would endanger life or limb."
The bill would also criminalize the intent to commit copyright crimes, which the Justice Department claims brings copyright more in line with other criminal laws. Currently, a crime actually has to have occurred in order for prosecutors to bring a case. The new legislation would criminalize the mere attempt.
"(If) in an investigation we find a big warehouse of DVDs but we can’t prove necessarily that they were actually distributed or sold, then as long as we see evidence we can charge those folks for attempt," the DOJ official said.
Yet, expanding the government's power to prosecute those who merely attempt or intend to violate copyrights raises a red flag, some critics say.
Not surprisingly, the music labels and Hollywood are expected to endorse the proposed legislation. After all, it's similar to last year's copyright bill that had the backing of Rep. Lamar Smith (R-Texas), the Software and Information Industry Association and the RIAA. And it's likely that Smith, the ranking Republican on the House Judiciary committee, will back Gonzales' bill.
An RIAA representative said the organization had not reviewed the bill and couldn’t comment.
The MPAA is also still analyzing the proposed legislation, according to Gayle Osterberg, an MPAA vice president. However, she did offer boilerplate support for the process, if not the bill itself.
"We very much appreciate the department's ongoing commitment to intellectual property protection and look forward to working with the department and Congress as the process moves ahead," she said.
If the bill does make it into law, you may want to think about moving those CDs just a little farther from your computer.
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