Imagine facing a 10-year prison sentence for having a spindle of CDs next to a computer full of music. Sound far-fetched? Critics of a bill titled the “Intellectual Property Protection Act of 2007,” proposed May 14, 2007 by Attorney General Alberto Gonzales, don’t think so. Characterizing the bill as an Orwellian thoughtcrime law, these critics are particularly alarmed at a provision that outlaws “attempts to infringe”—regardless of whether any actual infringement occurs.
The provision criminalizing attempted copyright infringement has sparked the most controversy, but the bill also contains an amalgam of provisions seeking to toughen existing copyright and trademark laws.
The bill proposes to do the following:
- Allow the prosecution of criminal copyright before works have been registered. Unlike the existing law, under the bill, copyright registration would not be a prerequisite for criminal prosecutions; however, it would still remain a prerequisite for civil suits. The apparent reasoning for the proposed change is that a copyright “subsists from [the work’s] creation,” 17 U.S.C. § 302(a). The logic is that prosecutors, because they work for the public good, should be able to institute an infringement prosecution even if the copyright has not yet been registered.
- Allow seizure and forfeiture of property used or “intended to be used” in copyright crimes. Among other property, the proposed bill subjects to forfeiture, “any property used, or intended to be used, in any manner or part” to commit or facilitate the commission of a federal copyright crime. This provision follows federal drug law asset forfeiture laws, and allows for destruction or other disposal of seized assets. Critics fear unhindered seizure and destruction of computers, particularly in cases of “attempted” copyright infringement.
- Clarify that export of infringing copies should be treated as an infringing distribution. The proposed bill would also confirm that export of infringing copies constitutes an infringing distribution, even if the exportation is not to the public (such as when the transaction involves shipment from one party to itself across a border).
- Strengthen penalties against repeat offenders. This provision beefs up repeat offender penalties by doing away with the requirement that the repeat offense be identical to the earlier offense. It imposes repeatoffender penalties when the infringer committed any two copyright felonies under 17 U.S.C. § 506(a), regardless of the particular type of offense (including attempt offenses).
- Boost penalties for counterfeiting offenses that threaten public health and safety. Targeting products such as counterfeit pharmaceuticals, or substandard electrical products bearing a counterfeit UL certification mark, this provision would increase the maximum penalties for counterfeiting offenses that endanger public health and safety from 10 to 20 years’ imprisonment where the defendant knowingly or recklessly causes or attempts to cause serious bodily injury. Most strikingly, the provision provides for life imprisonment where the defendant knowingly or recklessly causes or attempts to cause death.
- Permit wiretaps in investigations of criminal trademark and copyright offenses. Also attacked by critics, this provision would add copyright and trademark counterfeiting crimes to the list of crimes for which a federal court may issue an order authorizing a wiretap.
It is unclear whether the bill will succeed on Capitol Hill. As with similar legislation proposed in 2006, the 2007 bill is likely to be backed by Rep. Lamar Smith (R-Texas). However, the 2006 legislation went nowhere, and the 2007 bill may face the same fate, especially if grass-roots opposition efforts by the Electronic Frontier Foundation and others are successful. (See, e.g., “Fight the Justice Department’s Copycrime Proposal!” https://secure.eff.org/site/ Advocacy.) Further, the bill may face competing legislation. Rep. Howard Berman (D-Calif.) who heads the House Judiciary subcommittee on intellectual property, is reported to be planning to introduce his own intellectual-property enforcement bill later this year.
The bill would unquestionably strengthen protections for intellectual property owners. Yet many who vigorously oppose the bill argue that most of its provisions already are addressed in protections afforded elsewhere in the copyright laws (such as, for example, those afforded by the Digital Millennium Copyright Act, the No Electronic Theft Act, and the Family Entertainment and Copyright Act). Some also have questioned the relative merits of shifting the burden of copyright protection from copyright owners to the taxpayers, when the RIAA and other entertainment industry organizations have amply demonstrated their motivation and ability to pursue civil enforcement of the copyright laws.
It is too soon to tell what the fate of the new bill will be. However, if the bill does make it into law, you may want to think about moving those CDs just a little farther from your computer.