April 24, 2014

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U.S. Copyright May Get Harsher and Broader

Rep. Lamar Smith is preparing to introduce a bill in Congress that would increase penalties for copyright infringement and broaden the scope of the DMCA and other copyright laws, according to a news.com story. (The story seems to get some details of the bill wrong, so be sure to look at the bill itself before drawing conclusions.)

The bill would increase penalties for small-scale, noncommercial copyright infringement beyond even their current excessive levels. For example, noncommercial distribution of copyrighted material worth $2500 or more would carry a maximum sentence of ten years in Federal prison. Even attempting to commit that level of infringment would potentially carry a ten-year sentence. That’s the same maximum sentenced faced by bribe-taking Congressman Duke Cunningham, whose corruption probably cost taxpayers millions of dollars. It’s also more than the average Federal sentence for manslaughter (33 months), sexual abuse (73 months), arson (87 months), fraud (14 months), embezzlement (7 months), bribery (10 months), or racketeering/extortion (72 months).

The bill would also expand the scope of copyright in several respects. Most interesting to readers here is an expansion of the DMCA’s anticircumvention rules.

Recall that Section 1201 of the DMCA bans circumvention of technical protection mechanisms (TPMs), and also bans trafficking in circumvention devices. The Smith bill would expand the trafficking ban, by redefining “trafficking” as follows:

[T]he term ‘traffic in’ means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or dispose of.

In short, where the law now bans distribution of a circumvention device, the bill would also ban possession of a circumvention device with intent to distribute it.

This bill, if passed, would probably increase the DMCA’s chilling effect on research. Currently, a researcher can steer clear of the trafficking provision by keeping any circumvention devices to himself, using those devices himself (lawfully) in the lab. If the Smith bill passes, the researcher would have to worry that a plaintiff or prosecutor will misjudge his intent and bring a case, and that a judge or jury might be convinced that the researcher was eventually planning to distribute the device. Even if the claim of bad intent is baseless, refuting it will be slow, painful, and expensive.

I’m eager to hear the rationale for these expansions. But I wouldn’t be surprised if no rationale is offered, beyond the standard “piracy is bad” mantra or vague claims to be “rationalizing” the statute.

Comments

  1. Tim says:

    I get a “forbidden” error when I try to look at the legislation.

  2. Joakim says:

    Maybe the legislation itself has been embedded in a TPM…. :)

  3. Ed Felten says:

    No, it’s just my failure to set file permissions correctly. It’s fixed now.

  4. Seth Finkelstein says:

    “Even if the claim of bad intent is baseless, refuting it will be slow, painful, and expensive.”

    Right On! Say It!
    :-(

  5. Jamie says:

    I think you meant “It’s also MORE than” the average sentences.

  6. the_zapkitty says:

    How much did the media industries pay for this one?

    Corruption in any government is natural. Corruption in any government is a given… but at what point, at what percentage or at what leverage point, do the laws on which a government is based become so subverted as to render a government innately corrupt?

  7. Brandon Shatley says:

    Some rationale has already been given by Alberto Gonzales. It’s terrorism!

  8. the_zapkitty says:

    Brandon Shatley Said:
    Some rationale has already been given by Alberto Gonzales. It’s terrorism!

    Well, yes… the law allows corporations to terrorize anyone who is in favor of fair use and free speech.

    But as a protracted legal battle against a frivolous lawsuit designed to harass, limit. and silence fair use and free speech doesn’t immediately cause “injury such as death, organ failure, or serious impairment of body functions”… it ain’t torture, right?

  9. herne says:

    This proposed law is so far beyond the pale, it is almost unbelievable.

    If passed, however, there will be international repercussions–let me explain. I don’t know if you’re familiar with the case of Marc Emery, the self-confessed “Prince of Pot.” He has been selling marijuana seeds via mailorder to the United States and else where for some time now. According to the terms of the MLAT (Mutual Law Enforcement Assistance Treaty) he was arrested In Canada on behalf of the American DEA, and now potentially aces extradition to the United States where he would face many decades of prison time. (By way of contrast, here in Canada, he’s been arrested multiple times, been fined once or twice, and spent at most a few days in jail.)

    The point I’m getting at is, will the next Marc Emery face arrest and extradition to the United States on account of filesharing?

  10. Crosbie Fitch says:

    Copyright holder Alfred is distributing his copyrighted work (large amounts of rushes/footage of a movie he’s working on) via eDonkey to his wide and geographically disparate production team. The files are encrypted using a state of the art TPM to ensure that no unauthorised access is given to anyone else. Alfred is pleased that the DMCA helps secure his work by dissuading anyone considering circumventing his TPM.

    However, copyright holder Bob suspects that Alfred’s footage contains excerpts of his work that he broadcast last year. So, Bob procures and utilises a circumvention device knowing that such circumvention is sanctioned by law for copyright holders suspecting that their copyright is being infringed.

    Where, pray tell, is Bob going to get his circumvention device?

    Imagine millions of copyright holders suspecting that millions of encrypted works being exchanged on filesharing networks are infringing their copyrights.

    Is the law making circumvention devices illegal or not? Or perhaps the law is to provide warrants to each and every suspicious copyright holder to circumvent the TPMs for each file exchanged and every investigation of potential infringement?

    OR perhaps only the police will be permitted to manufacture and utilise circumvention devices?

    Perhaps, encryption will simply be prohibited. But, then that means TPMs based upon encryption will be denied to copyright holders.

    Oops. My brain just exploded.

  11. Pseudonym says:

    While I agree that this proposed bill is wrong on just about every level, it doesn’t seem right to complain that the proposed “maximum sentence” for copyright infringement would be greater than the “average [...] sentence” for other crimes. A computer scientist, of all people, should know the difference between “worst case” and “average case”.

  12. Neo says:

    Reading all of this I just … arrrgh … ugh … my head …

    http://tinyurl.com/nmgps

  13. James Laver says:

    Neo: That’s because you just *know* they’d put pressure on to award the maximum sentence all the time.

    The problem is that apart from screwing over Joe Consumer, it screws over any small artist who doesn’t want to go through the big guns. It’s just a ploy so that eventually they’ll become a cartel (which need I remind you, is illegal (the only other one tolerated is OPEC because of reliance on oil))

    It’s about the market, it’s about locking people out, it’s about charging fees for you to access your own content, and it’s about screwing over consumers so they have to pay $0.25 per hearing of a song. And it WILL get worse. If you don’t agree to their terms, they’ll pull some charge out of their ass and say you committed that crime, because it suits them. It’s going to be like a second government before long.

  14. the_zapkitty says:

    James Laver Sayeth:

    “Neo: That’s because you just *know* they’d put pressure on to award the maximum sentence all the time.”

    Of course not, fool… it’ll be far worse than that.

    Media industry lawyer to the accused:

    “Here’s what you’re facing, Mr. Doe… terrifying, isn’t it? But if you confess now, turn in all your friends, sign these agreements giving us yet even more legal backing and precedent for our abuses, and bend over right here… why then we’ll promise to use vaseline.”

  15. Ned Ulbricht says:

    [...] the standard “piracy is bad” mantra [...]

    Via MeFi, some material for a comparative look at how our society deals with “bad people”:

    Five of the subjects in this transcript from a concealed recording device [graphic language] pled guilty and were individually sentenced between 3-1/2 and 5 years:

    [...]

    Officer Webber: Once you sign that form, we’ll start being nicer, but until you sign that form, its fixin to get ugly, because them batteries right there, I’m fixin to go out there and get some wires and and hook ‘em up to your fucking balls. And if you don’t think I will, you don’t sign that form and watch what happens. So you best git signing.

    Officer Monday: Roll over here and sign this.

    Officer Monday: Eugene!

    Eugene: (unintelligible)

    [...]

    (p.16 in PDF)

    In his second statement to the TBI, Samuel R. Franklin (age 42; felony conspiracy to violate civil rights; 42 month sentence) swore:

    As previously stated I did not see who hooked up Eugene to the battery cables. I was later told by David Webber or Will Carroll on the way back to the jail that Shane Green hooked Eugene to the battery charger.

    Shane Green (age 35; felony conspiracy to violate civil rights) was sentenced to 54 months.

    Personally, I cannot fathom the circumstances under which conspiracy to infringe copyright should ever carry a sentence greater than conspiracy to hook someone up to battery charger.

  16. cm says:

    Good points. A while ago I read an article that (polemically) made the point that “property” offenses consistently carried higher penalties than “corporeal” offenses against people (rape, assault, …). Well, I guess nothing wrong with that, it’s just an expression of the value of property versus the value of human life (experience) in this society.

  17. Larry says:

    Government by the corporations, for the corporations.

    If this “bill” were to become law, I wouldn’t risk possessing any software or content which employed TPMs.

    The “use value” of any software/content is not worth the jeopardy of being subject to penalties such as these.

    Also, if the article is correct about the asset forfeiture provisions, it wouldn’t be long before real estate and vehicles of suspected copyright violators were seized – which often has the intended side effect of preventing suspects from being able to afford to defend themselves.

  18. Mr. X says:

    Glad I live in Canada!

    Maybe more Americans will move up here to avoid all of this bullsh*t!

  19. Tito says:

    Welcome to the new “War on Drugs”.

  20. James Laver says:

    *hopes html is allowed*

    James Laver Sayeth:

    “Neo: That’s because you just *know* they’d put pressure on to award the maximum sentence all the time.”

    Of course not, fool… it’ll be far worse than that.

    Media industry lawyer to the accused:

    “Here’s what you’re facing, Mr. Doe… terrifying, isn’t it? But if you confess now, turn in all your friends, sign these agreements giving us yet even more legal backing and precedent for our abuses, and bend over right here… why then we’ll promise to use vaseline.”

    It’s funny but it’s true. The first few who sign the papers will fuck it up for the rest. And who wouldn’t sign the papers? 10 years in jail, you’d find it hard not to.

    Welcome to the new “War on Drugs”.

    Ironic that the classification is largely arbitrary isn’t it. The same sort of thing will happen with this one. A pirate CD, that can be a schedule 3, a pirate dvd, that will be a schedule 2, hd movie without DRM? schedule 1. 20 years in the pen and nothing to say for it. Sickening, eh?

    The penalties are ridiculous and a private company gets more say in america’s future than the people. Sorry state of affairs.

  21. Steve R. says:

    My brain is locked into a feedback loop. Now that Tito stated, “Welcome to the new ‘War on Drugs’”. I have to regurgitate by “1984” rant, “1984” arrives and we are living it.

    George Orwell Quotes: from http://www.brainyquote.com/quotes/authors/g/george_orwell.html

    War is peace. Freedom is slavery. Ignorance is strength.

    Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.

    Political language… is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.

    ————————————————————————————————–

    From the AACS webpage: http://www.aacsla.com/what/consumer_benefits/
    Consumers should benefit from AACS because AACS will:
    · Support a superior viewing experience delivered by next generation media formats
    · Enable greater flexibility to manage distribute, and play entertainment content on a wider range of devices
    · Enable groundbreaking home entertainment choices and the ability to use content on PCs and a range of CE devices
    · Work across a variety of formats and platforms
    —————————————————————————————————-

    I am thankful that Big Brother is introducing these exciting DRM technologies and caring laws to assure these benefits for the common person. Excuse me, I need to take my Prozac now.

  22. Crosbie Fitch says:

    Until someone enlightens me as to why it is a non-issue I’ve condensed the issue I raised above into a neologism: Schrödinger’s Copyright.

    http://www.digitalproductions.co.uk/index.php?id=11

  23. Anonymous says:

    “In short, where the law now bans distribution of a circumvention device, the bill would also ban possession of a circumvention device with intent to distribute it.”
    “I’m eager to hear the rationale for these expansions.”

    Even with all the “campaign contributions” they don’t have the neccesary votes to criminalize possession and make half the under-30 cohort into criminals. It’s just another club to use on the public, since “intent to distribute” requires no affimative proof. This allows them to essentially threaten prosecution for possession.

  24. enigma_foundry says:

    >I’m eager to hear the rationale for these expansions. But I wouldn’t be >surprised if no rationale is offered, beyond the standard “piracy is bad” >mantra or vague claims to be “rationalizing” the statute.

    Yes, the rationale will be terrorism.

    >How much did the media industries pay for this one?
    >
    >Corruption in any government is natural. Corruption in any government is >a given… but at what point, at what percentage or at what leverage point, >do the laws on which a government is based become so subverted as to >render a government innately corrupt?

    I think we’ve started to reach that point.

    The question I believe is more critical is, given the government has become innately corrupt, and appears to be in an incipient or proto-fascist state, is a moral person required to actively resist this government?

    The answer to this, for, me is yes. Today, however due to the fact that their still does exist non-violent avenues for expression of dissent, that resistance should be non-violent.

    Now, if the administration and their corporate fascist cronies continue to engage in their media/legal campaign to reclassify non-violent resistance as boycotts terrorism (see:http://www.nypost.com/business/67726.htm), should that resistance remain non-violent?

    Of course it should remain non-violent.

    However the administration clearly wants those who resist to do so violently, so it can classify them as “terrorists,” hence the continuing provacation by the corporate fascists.

    My prediction is that we will see more and more provocations and uses of terrorist imagery to depict non-violent dissent.

  25. Ned Ulbricht says:

    Yes, the rationale will be terrorism.

    A November 10th, 2005 story by CNET staff writer Anne Broache (“Justice Dept. pushes stiffer antipiracy laws”) explains the current administration’s attitude:

    “The burden of checking whether each work was registered would substantially slow down investigations and hinder the government’s ability to prosecute these violations, especially infringement of works owned by small businesses that have not had the time or resources to register,” the department wrote in a document explaining its proposal.

    Overall, the changes are necessary because new technology is “encouraging large-scale criminal enterprises to get involved in intellectual-property theft,” Gonzales said, adding that proceeds from the illicit businesses are used, “quite frankly, to fund terrorism activities.”

    By any account, the registration requirement to obtain judicial protection of copyright has been a persistent element of our law since at least the Statute of 8 Anne, c.19 (1709). Although it has been considerably weakened by European—particularly French—notions of le droit d’auteur, and by Berne Convention harmonization; nevertheless we have retained that element consonant with the essential boundary between the public domain, and any limited, statutory monopoly.

    Now, though, under the pretext of combatting terrorism, the administration explains that three centuries of our law must be discarded.

  26. James Laver says:

    Well, if today had anything to say to us, it’s that relentless lobbying by the pro-DRM lobby will get them everywhere. They now turn the french DRM law meant to benefit consumers into something that just gives huge penalties for distribution of drm-cracking software.

    Bastards.

  27. Steve R. says:

    Regretfully, the “terrorism” card is one of of several tools to that may be used to bully the consumer. Another tool is “criminalization” of the contract dispute process. Timothy Lee wrote in the paper “Circumventing Competition The Perverse Consequences of the Digital Millennium Copyright Act” that “The Criminal Law Trump Card: The DMCA also gives Apple a club that is never available to parties in ordinary contract disputes: criminal penalties. If Apple reneges on the terms of a contract with its customers, they may sue the company for monetary damages. But no matter how egregious Apple’s breach of contract may be, customers cannot have Apple CEO Steve Jobs thrown in jail. Yet Apple can ask the federal government to throw those who circumvent its DRM system in jail— even if they never engaged in piracy.” http://www.cato.org/pub_display.php?pub_id=6025