COPYCENSE

Members of Congress may be leading a bipartisan effort that would give federal prosecutors the authority to prosecute people that use peer-to-peer networks, and collect fines and other monetary damages from those users.

Wired News reported last week that members of the House Judiciary Committee have been circulating a draft bill that "would make it much easier for the Justice Department to pursue criminal prosecutions against file sharers by lowering the burden of proof."

The bill also would seek penalties of fines and prison time of up to ten years for file sharing, according to the story.

Additionally, Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont) have drafted and introduced a separate bill, named the Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (or "Pirate Act"), that would give federal prosecutors the ability to collect monetary damages from persons who are liable for copyright infringement. Currently, copyright law allows only the copyright owner to recover monetary damages.

"Peer-to-peer file sharing software has created a dilemma for law-enforcement agencies. Millions of otherwise law-abiding American citizens are using this software to create and redistribute infringing copies of popular music, movies, computer games and software," said Hatch. "It is critical that we bring the moral force of the government to bear against those who knowingly violate the federal copyrights enshrined in our Constitution. The bill I join Senator Leahy in sponsoring today will allow the Department of Justice to supplement its existing criminal-enforcement powers through the new civil-enforcement mechanism. As a result, the [Department of Justice] will be able to impose stiff penalties for violating copyrights, but can avoid criminal action when warranted."

Hatch and Leahy have been longtime members of the Senate Judiciary Committee, the committee that has jurisdiction over intellectual property matters. The House Judiciary Committee also has jurisdiction over intellectual property legislation passed in the junior house of Congress.

This legislative initiative is another in a string of several recent efforts to criminalize the use of peer-to-peer networks. On March 19, we analyzed a separate news item that reported an initiative by states’ attorneys general to portray the makers of peer-to-peer software as manufacturers of defective products. Under such a legal theory, the manufacturers could be held liable under state product liability laws.

Additionally, the Wired News story points out that the entertainment industries "are pushing to portray P2P networks as dens of terrorists, child pornographers and criminals — a strategy that would make it more palatable for politicians to pass laws against products that are very popular with their constituents."

Protecting Intellectual Rights Against Theft and Expropriation Act of 2004

Xeni Jardin. Congress Moves to Criminalize P2P. Wired News. March 26, 2004.

Declan McCullagh, et al. P2P Faces New Legal Scrutiny from States News.com. March 15, 2004.

United States Senate, Committee on the Judiciary. Protecting Creative Works in a Digital Age.