Gonzales proposes new crime: 'Attempted' copyright infringement Posted by Declan McCullagh
Attorney General Alberto Gonzales is pressing the U.S. Congress to enact a sweeping intellectual-property bill that would increase criminal penalties for copyright infringement, including "attempts" to commit piracy.
"To meet the global challenges of IP crime, our criminal laws must be kept updated," Gonzales said during a speech before the U.S. Chamber of Commerce in Washington on Monday.
The Bush administration is throwing its support behind a proposal called the Intellectual Property Protection Act of 2007, which is likely to receive the enthusiastic support of the movie and music industries, and would represent the most dramatic rewrite of copyright law since a 2005 measure dealing with prerelease piracy.
The IPPA would, for instance:
* Criminalize "attempting" to infringe copyright. Federal law currently punishes not-for-profit copyright infringement with between 1 and 10 years in prison, but there has to be actual infringement that takes place. The IPPA would eliminate that requirement. (The Justice Department's summary of the legislation says: "It is a general tenet of the criminal law that those who attempt to commit a crime but do not complete it are as morally culpable as those who succeed in doing so.")
* Create a new crime of life imprisonment for using pirated software. Anyone using counterfeit products who "recklessly causes or attempts to cause death" can be imprisoned for life. During a conference call, Justice Department officials gave the example of a hospital using pirated software instead of paying for it.
* Permit more wiretaps for piracy investigations. Wiretaps would be authorized for investigations of Americans who are "attempting" to infringe copyrights.
* Allow computers to be seized more readily. Specifically, property such as a PC "intended to be used in any manner" to commit a copyright crime would be subject to forfeiture, including civil asset forfeiture. Civil asset forfeiture has become popular among police agencies in drug cases as a way to gain additional revenue, and it is problematic and controversial.
* Increase penalties for violating the Digital Millennium Copyright Act's anticircumvention regulations. Criminal violations are currently punished by jail times of up to 10 years and fines of up to $1 million. The IPPA would add forfeiture penalties.
* Add penalties for "intended" copyright crimes. Certain copyright crimes currently require someone to commit the "distribution, including by electronic means, during any 180-day period of at least 10 copies" valued at more than $2,500. The IPPA would insert a new prohibition: actions that were "intended to consist of" distribution.
* Require Homeland Security to alert the Recording Industry Association of America. That would happen when CDs with "unauthorized fixations of the sounds, or sounds and images, of a live musical performance" are attempted to be imported. Neither the Motion Picture Association of America nor the Business Software Alliance (nor any other copyright holder, such as photographers, playwrights or news organizations, for that matter) would qualify for this kind of special treatment.
A representative of the Motion Picture Association of America told us: "We appreciate the department's commitment to intellectual- property protection and look forward to working with both the department and Congress as the process moves ahead."
What's still unclear is the kind of reception this legislation might encounter on Capitol Hill. Gonzales may not be terribly popular, but Democrats do tend to be more closely aligned with Hollywood and the recording industry than is the GOP. (A few years ago, Republicans even savaged fellow conservatives for allying themselves too closely with copyright holders.)
On behalf of Rep. Howard Berman, the California Democrat who heads the House Judiciary subcommittee that focuses on intellectual property, a representative said the congressman is reviewing proposals from the attorney general and others. The aide said the Hollywood politician plans to introduce his own intellectual-property enforcement bill later this year but that his office is not prepared to discuss any details yet.
One key Republican was less guarded. "We are reviewing (the attorney general's) proposal. Any plan to stop IP theft will benefit the economy and the American worker," said Rep. Lamar Smith of Texas, the top Republican on the House Judiciary committee. "I applaud the attorney general for recognizing the need to protect intellectual property."
Still, it's too early to tell what might happen. A similar copyright bill that Smith, the RIAA and the Software and Information Industry Association enthusiastically supported last April never went anywhere.