COPYRIGHT
Jerry Pournelle
Monday, May 17, 2004
The Following is long, and of specialized interest, so I am putting it on its own page. Discussion will also be here. This is a very important matter to many of us.
Dear Jerry:
With all that's going on, I'm not surprised that this one slipped below the radar, but it would be an important step in the right direction for protecting copyrights. Deatails from the Congressional Record below for your information and edification.
Francis
Why hasn't the union taken a position on this? If passed it would make it very easy to go after infringers.
Francis Hamit
By Mr. LEAHY (for himself and Mr. HATCH):
S. 2237. A bill to amend chapter 5 of title 17, United States Code, to authorize civil copyright enforcement by the Attorney General, and for other purposes; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, the advent of the digital age promises the efficient distribution of music, films, books, and software on the Internet, and an easily-accessed, unprecedented variety of content online. Unfortunately, to see this promise realized, we must overcome some of the challenges presented by digital content distribution. Today I am pleased that Senator HATCH is joining me in sponsoring the ``Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act of 2004,'' which will respond to one such challenge. It will bring the resources and expertise of the United States Attorneys' Offices to bear on wholesale copyright infringers.
The very ease of duplication and distribution that is the hallmark of digital content has meant that piracy of that content is just as easy. The very real--and often realized--threat that creative works will simply be duplicated and distributed freely online has restricted, rather than enhanced, the amount and variety of creative works one can receive over the Internet. Part of combating piracy includes offering a legal alternative to it. Another important part is enforcing the rights of copyright owners. Senator HATCH and I have been working with artists, authors, and software developers to create an environment in which copyright is protected, so that we can all enjoy American creativity, and so that copyright owners can be paid for their work.
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. In the world of copyright, a criminal charge is unusually difficult to prove because the defendant must have known that his conduct was illegal and he must have willfully engaged in the conduct anyway. For this reason prosecutors can rarely justify bringing criminal charges, and copyright owners have been left alone to fend for themselves, defending their rights only where they can afford to do so. In a world in which a computer and an Internet connection are all the tools you need to engage in massive piracy, this is an intolerable predicament.
Some steps have already been taken. The Allen-Leahy Amendment to the Foreign Operations Appropriations Bill, on Combating Piracy of U.S. Intellectual Property in Foreign Countries, provided $2.5 million for the Department of State to assist foreign countries in combating piracy of U.S. copyright works. By providing equipment and training to law enforcement officers, it will help those countries that are not members of OECD (Organization for Economic Cooperation & Development) to enforce intellectual property protections.
The PIRATE Act will give the Attorney General civil enforcement authority for copyright infringement. It also calls on the Justice Department to initiate training and pilot programs to ensure that Federal prosecutors across the country are aware of the many difficult technical and strategic problems posed by enforcing copyright law in the digital age.
This new authority does not supplant either the criminal provisions of the Copyright Act, or the remedies available to the copyright owner in a private suit. Rather, it allows the government to bring its resources to bear on this immense problem, and to ensure that more creative works are made available online, that those works are more affordable, and that the people who work to bring them to us are paid for their efforts.
The challenges presented by digital content are multifaceted, and no single response will resolve all of them. We must, and we will, offer a broad array of solutions that taken together will help ensure the protection of intellectual property, encourage the deployment of digital content, and allow technology to develop unimpeded. This bill is just one step in this process. I am working with colleagues, members of the private sector, and officials from the Executive Branch, to craft careful and effective responses to other such challenges in the intellectual property arenas.
I hope that my colleagues support the ``Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act of 2004,'' and I ask unanimous consent that the text of this bill be printed in the RECORD.
There being no objection, the bill was ordered to be printed in the RECORD, as follows:
S. 2237
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Intellectual Rights Against Theft and Expropriation Act of 2004''.
SEC. 2. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCEMENT BY ATTORNEY GENERAL.
(a) IN GENERAL.--Chapter 5 of title 17, United States Code, is amended by inserting after section 506 the following:``§506a. Civil penalties for violations of section 506
``(a) IN GENERAL.--The Attorney General may commence a civil action in the appropriate United States district court against any person who engages in conduct constituting an offense under section 506. Upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty under section 504 which shall be in an amount equal to the amount which would be awarded under section 3663(a)(1)(B) of title 18 and restitution to the copyright owner aggrieved by the conduct.
``(b) OTHER REMEDIES.--
``(1) IN GENERAL.--Imposition of a civil penalty under this section does not preclude any other criminal or civil statutory, injunctive, common law or administrative remedy, which is available by law to the United States or any other person;
``(2) OFFSET.--Any restitution received by a copyright owner as a result of a civil action brought under this section shall be offset against any award of damages in a subsequent copyright infringement civil action by that copyright owner for the conduct that gave rise to the civil action brought under this section.''.
(b) DAMAGES AND PROFITS.--Section 504 of title 17, United States Code, is amended--
(1) in subsection (b)--
(A) in the first sentence--
(i) by inserting ``, or the Attorney General in a civil action,'' after ``The copyright owner''; and
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(ii) by striking ``him or her'' and inserting ``the copyright owner''; and
(B) in the second sentence by inserting ``, or the Attorney General in a civil action,'' after ``the copyright owner''; and
(2) in subsection (c)--
(A) in paragraph (1), by inserting ``, or the Attorney General in a civil action,'' after ``the copyright owner''; and
(B) in paragraph (2), by inserting ``, or the Attorney General in a civil action,'' after ``the copyright owner''.
(c) TECHNICAL AND CONFORMING AMENDMENT.--The table of sections for chapter 5 of title 17, United States Code, is amended by inserting after the item relating to section 506 the following:
``506a. Civil penalties for violation of section 506.''.
SEC. 3. AUTHORIZATION OF FUNDING FOR TRAINING AND PILOT PROGRAM.
(a) TRAINING AND PILOT PROGRAM.--Not later than 180 days after enactment of this Act, the Attorney General shall develop a program to ensure effective implementation and use of the authority for civil enforcement of the copyright laws by--
(1) establishing training programs, including practical training and written materials, for qualified personnel from the Department of Justice and United States Attorneys Offices to educate and inform such personnel about--
(A) resource information on intellectual property and the legal framework established both to protect and encourage creative works as well as legitimate uses of information and rights under the first amendment of the United States Constitution;
(B) the technological challenges to protecting digital copyrighted works from online piracy;
(C) guidance on and support for bringing copyright enforcement actions against persons engaging in infringing conduct, including model charging documents and related litigation materials;
(D) strategic issues in copyright enforcement actions, including whether to proceed in a criminal or a civil action;
(E) how to employ and leverage the expertise of technical experts in computer forensics;
(F) the collection and preservation of electronic data in a forensically sound manner for use in court proceedings;
(G) the role of the victim copyright owner in providing relevant information for enforcement actions and in the computation of damages; and
(H) the appropriate use of injunctions, impoundment, forfeiture, and related authorities in copyright law;
(2) designating personnel from at least 4 United States Attorneys Offices to participate in a pilot program designed to implement the civil enforcement authority of the Attorney General under section 506a of title 17, United States Code, as added by this Act; and
(3) reporting to Congress annually on--
(A) the use of the civil enforcement authority of the Attorney General under section 506a of title 17, United States Code, as added by this Act; and
(B) the progress made in implementing the training and pilot programs described under paragraphs (1) and (2) of this subsection.
(b) ANNUAL REPORT.--The report under subsection (a)(3) may be included in the annual performance report of the Department of Justice and shall include--
(1) with respect to civil actions filed under section 506a of title 17, United States Code, as added by this Act--
(A) the number of investigative matters received by the Department of Justice and United States Attorneys Offices;
(B) the number of defendants involved in those matters;
(C) the number of civil actions filed and the number of defendants involved;
(D) the number of civil actions resolved or terminated;
(E) the number of defendants involved in those civil actions;
(F) the disposition of those civil actions, including whether the civil actions were settled, dismissed, or resolved after a trial;
(G) the dollar value of any civil penalty imposed and the amount remitted to any copyright owner; and
(H) other information that the Attorney General may consider relevant to inform Congress on the effective use of the civil enforcement authority;
(2) a description of the training program and the number of personnel who participated in the program; and
(3) the locations of the United States Attorneys Offices designated to participate in the pilot program.
(c) AUTHORIZATION OF APPROPRIATIONS.--There are authorized to be appropriated $2,000,000 for fiscal year 2005 to carry out this section.
Mr. HATCH. Mr. President, I rise to join Senator LEAHY in sponsoring the Protecting Intellectual Rights Against Theft and Expropriation Act--the ``PIRATE Act''--a measure that will provide the Department of Justice with tools to combat the rampant copyright piracy facilitated by peer-to-peer filesharing software.
Let me underscore at the outset that our bill does not expand the scope of the existing powers of the Department of Justice to prosecute persons who infringe copyrights. Instead, our proposal will assist the Department in exercising existing enforcement powers through a civil enforcement mechanism. After considerable study, we have concluded that this is the most appropriate mechanism.
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.
Some who copy these works do not fully understand the illegality, or perhaps the serious consequences, of their infringing activities. This group of filesharers should not be the focus of federal law-enforcement efforts. Quite frankly, the distributors of most filesharing software have failed to adequately educate the children and young people who use their software about its legal and illegal uses.
A second group of filesharers consists of those who copy and redistribute copyrighted works even though they do know that doing so violates federal law. In many cases, these are college students or young people who think that they will not get caught. Many of these filesharers are engaging in acts that could now subject them to federal criminal prosecution for copyright piracy.
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. But many of us remain concerned that using criminal law enforcement remedies to act against these infringers could have an overly-harsh effect, perhaps, for example, putting thousands of otherwise law-abiding teenagers and college students in jail and branding them with the lifelong stigma of a felony criminal conviction.
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 will be able to impose stiff penalties for violating copyrights, but can avoid criminal action when warranted.
In advancing this measure, I must note that I view this civil-enforcement authority as another tool, hopefully a transitional tool at that. 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.
Only recently has America faced the specter of widespread copyright-enforcement actions against individual users of copyrighted works. For nearly 200 years, copyright enforcement was rarely directed against the millions of ordinary American citizens who use and enjoy copyrighted works. Instead, creators and distributors of copyrighted content worked together to negotiate the complex licensing agreements and technological protections needed to distribute copyrighted works in ways that accommodated both the expectations of users and the copyrights of artists.
But recently, some unscrupulous corporations may have exploited new technologies and discovered that the narrow scope of civil contributory liability for copyright infringement can be utilized so that ordinary consumers and children become, in effect, ``human shields'' against copyright owners and law enforcement agencies. Unscrupulous corporations could distribute to children and students a ``piracy machine'' designed to tempt them to engage in copyright piracy or pornography distribution.
Unfortuantely, piracy and pornography could then become the cornerstones of a ``business model.'' At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become ``human shields'' against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.
<<< < http://thomas.loc.gov/cgi-bin/query/F?r108:1:./temp/%7Er108C1lJH5:b46624: >
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"Unfortunately, piracy and pornography could then become the cornerstones of a ``business model.'' At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become ``human shields'' against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet. "
Wow, he's going after Apple's iTunes? :)
This is a very important issue, which I am only involved from the "consumer" side - I don't produce any creative works, I don't sell my comments or stories or movies for any amount of money. However, I have read many books (severe understatement) and have bought a fair amount of music and video. So, from the perspective of someone that has a public school education:
"Don't these people have better things to do???"
First of all, they are wanting the DoJ to have civil powers for copyright enforcement. This is all well and good, but why would they want to LIMIT the effects of enforcing laws? In their speech, they talk about "avoid(ing) criminal action". Why? If there is criminal activity going on, why would you want to avoid getting convictions and giving people a record? They would have you believe that it is out of the goodness of their hearts, but I suspect there is something more going on... Just the name of the act points me in that direction. (PIRATE? sheesh...)
For me, the most frightening statement is this one: "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. "
I was always told that the American system was based on the "innocent until proven guilty" principle. For me, the most important part of that is "proven". That is a limitation that is deliberately imposed on law enforcement, that they can't simply walk up to someone, say "OK, you are carrying around a CD, and I think you are going to give it to someone else to make a copy. Prove me wrong!" If they want to go after someone, the burden of proof isn't that hard... If they have a copy of something (I'll use music CD's as a common example) on their hard drive, and it is shared on a file sharing service, then they have provided a mechanism for infringement. Whether they know about it or not, it has happened, and "ignorance is no excuse". So, why does this suddenly need to be turned into a civil action?
What the main aim of this act seems to be, is to turn the DoJ into the private law office for the RIAA, MPAA, and whatever the booksellers association is called. By turning copyright infringement into something the government goes into prosecuting full time, their current intimidation efforts are made much easier. Notice, of course, that the penalties paid go to the copyright owner... And that the act specifically states that "personnel from at least 4 United States Attorneys Offices " are to be immediately set to working on prosecuting these civil suits.
I will save the copyright discussion for another time - I have been a long term supporter of libraries and video stores, but I also own >400 books and ~100 CDs... What I object to, is that they are seeking to use the DoJ as their enforcement arm, and I don't believe that it is good for the government to be involved in what would essentially amount to a shake-down gang.
John D. Ballentine III
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Though I create intellectual property for various companies I have never sold or tried to sell any of my works (other than via salary) so I am also approaching this issue from the sole perspective of a consumer.
In my opinion the complexity of this issue is so great we may not have a really workable solution that's agreeable for the seller and buyer for some time. Copyright law just doesn't work well when you're talking about things that are as basic as the wheel. Some of the silly stuff that's currently being patented (such as 1 click shopping by Amazon) is just insane. When you combine this with the current monopolistic megalomania of some software companies you'll find copyright being the single biggest obstacle to innovation ever invented.
As far as file sharing and works that are under copyright protection I really have to wonder how much damage is being done. Has there ever been a time that kids didn't record material off the radio and share it with friends. I know, I know, digital duplication and the internet takes things to a new level. However the record companies are not posting any great losses that can be proven to spring from file sharing. So why is the FBI knocking down doors over this! That's the thing that really bothers me. Does there need to be controls on the outright dispersal of copyrighted works without any royalty being paid? Certainly, absolutely! It's wrong and it's against the law! But do we need to devote this much law enforcement muscle to an issue that is primarily an icing on the cake profit for record and movie companies that are already so fat they're sick. Not for my tax dollars!! Speeding is also wrong and against the law. It kills thousands each year. A far worse crime than a business (especially a fat one like entertainment) losing a few bucks. I wonder what the reaction would be to having the FBI bust down doors, confiscate cars and fine you $150,000 for each mile over the limit you were going? Especially if they sent out notices saying that they'll forgive you if you cough up a couple of thousand dollars and admit you were wrong and promise to never do it again. Com'on! Talk about wrong and illegal. I think they used to call that extortion.
Copyright is supposed to be a tool to protect the creator of new works and help enhance innovation. this is a misuse of the law to allow many agencies an unprecedented amount of surveillance on what people are doing on the web and with their computers.
James Kimble Loveland, Ohio
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Dear Jerry:
I started this, so I guess I better chip in. As you know and Mr. Loveland does not, I've recently begun publishing some of my old articles online, but singly and in thematic bundles of three to six articles. I distributed through Lightning Source, which in turn resells them through Amazon.com, Powells.com, Elibron and other affiliated sites. This is part of that grand experiment I started late last year to see if a freelance writer can make money directly on the internet without setting up a web site and buying expensive DRM software.
Much to everyone's amazement, including my own (Okay, I'm not that amazed ), I can and am. Not much so far, but we are still putting stuff up. I have a pile of registered, previously published work that is more than half a million words, and more than 300 articles. About a hundred are already being distributed, without my permission, through Gale Group, which resells them to libraries around the world (I found them in the National Library of Iran) and Lexis-Nexis, Dialog, Factiva, Ingenta, et al.
So let's do the math for Mr. Loveland's benefit: The minimum price on Amazon is $1.95. It's the usual bookstore to publisher discount, so I get 45% of that or 88 cents. Therefore, I can argue that every time someone got an unauthorized copy that one of those 100 or so articles, I was deprived of that revenue. How much is that? It's been at least five years and there are almost 100,000 libraries in the country alone...and Gale Group also distributes to more than 100 other countries. So lets just say "lots". Plus the money taken by the paid database companies.
And the issue in not simply copyright infringement, it's also false copyright management information with ownership attributed to the publisher rather than me...and it is also Unfair Competition. That latter complaint can be brought in some state courts; everything else is a Federal case. And this is what makes the PIRATE Act so important. Criminal cases involve jail time and restitution, if any, is at the direction and pleasure of the court. The burden of proof is "beyond a reasonable doubt. " A Civil case is decided on "a preponderance of the evidence" and much lower standard of proof. especially since there are three levels of infringement; direct, contributory and vicarious.
It also takes about $100,000 to prep and bring most copyright cases. (And about five times that to defend, which is why so many are settled before trial) Most publishers assume that a freelance writer will ever have that kind of money, so they ignore us when we complain. That's bad advice from a lawyer because it means that they are not acting reasonably; something the courts place great store in.
I tried to get a Federal Criminal Prosecution against one publisher last year. It didn't happen. If the DOJ can bring a civil case, then the matter can be disposed of more easily.
There is more information for writers and those who are just interested on my blof The Fight For Copyright at thefightforcopyright@forwriters.org. Anyone who wants to see how I format and distribute these articles can just buy one (or two, or five or ten or....) on Amazon in the e-bboks section, or at Powells.
Amazon has really long reach. I've been doing this for just six weeks, but my material is now on offer mot just in the USA, but also Japan, Germany, Australia and the United Kingdom. Now that's distribution!
I'm sure that everyone realizes that Amazon can and does compete directly with the the other firms mentioned above. It provides writers access and a level playing field in the marketplace. Giving the DOJ the ability to do civil suits on our behalf as well as for Big Media will Laos level the playing field.
Finally, being able to distribute and sell an article directly to the reader has interesting implications for the traditional model of publishing short nonfiction, or for that matter, fiction. It leads writers to ask the rude question of editors and publishers, "What do we need you guys for?" More on that anon.
Sincerely,
Francis Hamit
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Jerry -
In my humble opinion, any discussion of copyright is enlivened by consideration of Spider Robinson's piece "Melancholy Elephant" which -- at least until recently -- could be found at http://www.baen.com/chapters/W200011/0671319744___1.htm
It focuses on the problems associated with ever increasing lengths for copyrights to protect such icons as "The Mouse That Roared" and does not address issues associated with protection of intellectual property distributed in digital format.
Please note that these comments are solely mine, and are not related to my employer in any way.
Charles Brumbelow, CFO Nashville Public Television