At the "Stopping the Fakes" anti-piracy conference hosted by the US Chamber of Commerce, Attorney General Alberto Gonzales announced the Intellectual Property Protection Act (IPPA) of 2005. In the opinion of the AG, the bill is a necessary response to copyright infringement in the information age. This marks a slight change in rhetoric from the law enforcement branch of the US government, but media reports have over-assessed the bill and its ramifications.
In recent years the Department of Justice has largely shied away from policing copyright at the behest of big business. A proposed bill that would have made the FBI responsible for doing the work of the MPAA didn't get off the ground a few years back, but later iterations have all pushed the same point: US taxpayers should foot the bill for enforcing civil copyright. The key word there is civil. While common parlance often talks of file sharing and piracy as "theft" or "stealing," in the overwhelming majority of instances, copyright infringement is a civil matter, not a criminal one. Infringement becomes criminal when it involves "commercial advantage or private financial gain," or when it involves redistributing copyrighted materials in excess of US$1,000 in a 180-day period. Claims that this bill would make merely using a P2P client illegal are without merit.
The IPPA (PDF) would expand the definition of criminal infringement by adding the dubious provision that even attempting to infringe copyright for the criminal reasons outlined above is the same as infringing it explicitly. To be clear, the legislation does not criminalize the attempt to pirate a single TV show, album, or any other copyrightable material, unless it involves bootlegging ("fixing" a live performance into a copyrightable form and distributing it). Previous restrictions on circumventing access controls remain in place.
Rather, the IPAA is aimed at organized crime and illegal bootlegging operations. The legislation would make it possible for the Feds to bust massive copyright infringement rings trying to get off the ground, expand penalties, and provide for the seizure of "any property constituting or derived from any proceeds obtained, directly or indirectly, as the result of the offense."
Additionally, if the IPPA becomes law, it will become possible for authorities to enforce copyright laws on content that has not yet been registered. Currently, only copyrights that have been registered can be enforced, which means that those whose copyrights are infringed must first register their copyright before action can commence. This has created a strange scenario for copyright holders, who under the law obtain copyright merely by fixing materials in a copyrightable form, not by registration.
Public Knowledge has questioned removing this requirement for pursuing criminal infringement.
Current copyright law requires a copyrighted work to be registered with the U.S. Copyright Office before an infringement suit can be filed--regardless of whether it is a civil or criminal suit. While this change might increase the Department's ability to apprehend copyright infringers, it would have an overall negative effect by discouraging copyright registration.
The real question, however, is what benefit does copyright registration really serve? Copyrights are not the same as patents, and as I have already mentioned, registration is not required to obtain a copyright.
On my initial reading, the proposals are by and large rational, and do not justify the fear-mongering present in most reports I've read to date. The primary objection I have relates to the criminal infringement section being amended to include the attempts at criminal infringement. This raises criminal copyright infringement to a rather serious level. As you are likely aware, attempts at criminal behavior are not in all instances criminalized. Sometimes you have to do the deed before it's truly a crime. What remains to be argued is why in this instance expanding infringement to include attempts makes sense. I surmise that it is primarily an attempt to justify sniffing out piracy rings while they're in their infancy. If limited to truly criminal efforts, this could be a just law.
I cannot abide by additional changes to the US Code concerning copyright until the current list of injustices is wiped clean. First, restore our fair use rights and clearly educate every consumer about what they can and cannot do with content. No more surprises and hoodwinking by the content industry. I want to see every CD and DVD laden with oppressive "content protection" labeled so, and I want those labels to explicitly detail what they're going to do. Furthermore, I want any copy protection that harms users to be made criminal. Justice should and must flow both ways.
Level the playing field. Make it truly fair. Make technological measures that restrict our rights illegal. Trash inane laws aimed at nickel and diming us to death. Remove any restrictions whatsoever on circumventing access controls when those doing the circumvention are merely exercising their fair use rights. Finally, put consumer's rights into law. Amend chapter 17 of the US code to explicitly allow for backups. For private, personal use, allow for the transfer of any and all copyrightable content between devices and mediums. State clearly in law what citizens can do, and hold a public referendum on the topic. Let the citizens of the United States decide what is just and fair, and send the lobbyists and their law-writing employees to the back of the room, where they belong.
Charles Jade contributed to this report.