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TechnologyDaily Mobile
The Copyright Criminal Next Door
by Sarah Lai Stirland
Peter Royal, a software developer in Brooklyn, N.Y., is a dance and electronic music enthusiast. One outlet that plays his favorite music is BBC Radio, which broadcasts a show called The Essential Mix every Saturday.
Though BBC appears to have made recent editions of the show available at its Web site, Royal said he uses the BitTorrent file-sharing program to download copies from other sites to his hard drive, which contains more than 3,000 tunes. Royal also uses Apple's Airport Express Wireless router with Airtunes to stream his music to speakers across his apartment.
Royal, who bought 90 percent of the music on his hard drive, said content creators should be paid for their work. But in the spectrum of criminal activity, he equates music sharing to jaywalking. "File sharing isn't stealing, it's copyright infringement," he said. "Digital files aren't really anything. They're just atoms arranged a certain way. The person who creates the music doesn't lose anything tangible from having the file shared. They just lost an [economic] opportunity."
But he and other patrons of file-sharing networks may be surprised to discover that existing law does make mass copyright infringement a crime. And legislation now before Congress attempts to take aim at the illegal kinds of behavior that might be enhanced by software such as BitTorrent.
The Standard Of Criminality
A Senate bill, S. 2560, on "inducing" copyright infringement has garnered the most attention in the latest battle over shaping digital copyright law, but a House measure, H.R. 4077, focused on file-sharing activities also is generating concern among technology industry lobbyists.
The House legislation would tweak existing statutes to ease the enforcement of laws against copyright infringement on file-sharing networks. Proponents of the bill say that existing law makes it difficult for law enforcement to meet the legal standards for successful prosecutions of mass infringements on the file-sharing networks.
Entertainment industry lobbyists say that both the House measure and a Senate-passed bill, S. 2237, that would let the Justice Department bring civil cases would make changes needed to give Justice more legal tools against illegal activities on the file-sharing networks.
The House bill has some traction. Last week, the House Judiciary Committee approved it. The legislation would lower current criminal liability standards for pursuing large-scale copyright-infringement cases and would require the associate attorney general to publicize the detrimental effects of copyright infringement. The measure also would dedicate personnel to the effort and authorize funding, among other things.
The criminal liability standard, which entertainment industry lobbyists say is necessary for successful file-sharing prosecutions, is the most controversial provision. Technology industry interests argue that the lowered standard could ensnare innocent third parties, such as digital-music patrons who are also users of wireless networks, and Internet service providers.
Under the bill, law enforcers no longer would have to prove "intent." Instead, they would only have to prove that suspects infringed on copyrighted works "by knowing distribution, including by the offering for distribution to the public by electronic means, with reckless disregard of the risk of further infringement."
'Intent' vs. 'Reckless Disregard'
Entertainment industry lobbyists say that the "intent" standard is too high for successful prosecutions of infringements like those on peer-to-peer (P2P) networks. The act of giving others access to materials such as music or movies on hard drives is little evidence of intent, said David Green, technology and new media counsel at the Motion Picture Association of America.
"Overall there has been a very, very high standard of intent, which is this willfulness standard, and that creates some difficulty in prosecuting people who upload material onto P2P networks," he said.
In August, Attorney General John Ashcroft mounted Justice's first enforcement against alleged P2P infringers in Operation Digital Gridlock, an effort that required actions providing evidence of intent. "But the law doesn't address the more ordinary, run-of-the-mill circumstance where people are still downloading significant numbers of pre-release stuff," Green said.
"If you don't know that you're distributing, you can't be liable," he said. "[But] if you're downloading movies and making them available to others and you don't have a right to do that, such as making available through Kazaa a copy of a movie currently available through movie theaters, then yes, you would be liable."
But Phil Corwin, a partner at the Butera and Andrews law firm and a lobbyist for the file-sharing firm Sharman Networks, said a lower legal standard could make people like Royal guilty of negligence. "This section of the bill is not necessary to facilitate enforcement against true criminals," Corwin said. "Instead, its purpose is to threaten ordinary, otherwise law-abiding P2P users with the threat of criminal prosecution under a dangerously vague negligence standard."
He questioned what level of knowledge would be required to meet the lower legal standard of "reckless disregard," noting that Apple's iTunes lets people on a network listen to other people's music. He added: "There's software that allows people to download the streams from the wireless network. Does the fact that someone doesn't know that this hack exists mean that they're in reckless disregard of infringement?"
Cause For Alarm, But By Whom?
Green said that argument borders on the absurd because it "ignores the 'knowing' part of the clause. If you don't know about it, you ain't guilty."
Green and another entertainment industry lobbyist speaking on background said Justice's involvement in prosecuting high-profile cases is essential in changing societal norms of copyright infringement. "They really are breaking the law of the United States, and this is criminal activity," the lobbyist said. "Some people just don't want to take that risk."
But Corwin said lawmakers already increased the risks for average Internet users with enactment of a 1997 law that made non-commercial copyright infringement a crime.
"Congress is moving a bill that would impose incarceration for non-commercial infringement without any need to show willful conduct," Corwin said. "This is a radically dangerous notion that should alarm civil libertarians of all political persuasions."
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