[Infowarrior] - "Son of DMCA" being prepped by Congress

[Richard Forno]

Congress readies new digital copyright bill

By Declan McCullagh
http://news.com.com/Congress+readies+new+digital+copyright+bill/2100-1028_3-
6064016.html

Story last modified Sun Apr 23 06:00:06 PDT 2006

For the last few years, a coalition of technology companies, academics and
computer programmers has been trying to persuade Congress to scale back the
Digital Millennium Copyright Act.

Now Congress is preparing to do precisely the opposite. A proposed copyright
law seen by CNET News.com would expand the DMCA's restrictions on software
that can bypass copy protections and grant federal police more wiretapping
and enforcement powers.

The draft legislation, created by the Bush administration and backed by Rep.
Lamar Smith, already enjoys the support of large copyright holders such as
the Recording Industry Association of America. Smith is the chairman of the
U.S. House of Representatives subcommittee that oversees
intellectual-property law.

Smith's press secretary, Terry Shawn, said Friday that the Intellectual
Property Protection Act of 2006 is expected to "be introduced in the near
future."

"The bill as a whole does a lot of good things," said Keith Kupferschmid,
vice president for intellectual property and enforcement at the Software and
Information Industry Association in Washington, D.C. "It gives the (Justice
Department) the ability to do things to combat IP crime that they now can't
presently do."

During a speech in November, Attorney General Alberto Gonzales endorsed the
idea and said at the time that he would send Congress draft legislation.
Such 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."

The 24-page bill is a far-reaching medley of different proposals cobbled
together. One would, for instance, create a new federal crime of just trying
to commit copyright infringement. Such willful attempts at piracy, even if
they fail, could be punished by up to 10 years in prison.

It also represents a political setback for critics of expanding copyright
law, who have been backing federal legislation that veers in the opposite
direction and permits bypassing copy protection for "fair use" purposes.
That bill--introduced in 2002 by Rep. Rick Boucher, a Virginia Democrat--has
been bottled up in a subcommittee ever since.

A DMCA dispute
But one of the more controversial sections may be the changes to the DMCA.
Under current law, Section 1201 of the law generally prohibits distributing
or trafficking in any software or hardware that can be used to bypass
copy-protection devices. (That section already has been used against a
Princeton computer science professor, Russian programmer Dmitry Sklyarov and
a toner cartridge remanufacturer.)

Smith's measure would expand those civil and criminal restrictions. Instead
of merely targeting distribution, the new language says nobody may "make,
import, export, obtain control of, or possess" such anticircumvention tools
if they may be redistributed to someone else.

"It's one degree more likely that mere communication about the means of
accomplishing a hack would be subject to penalties," said Peter Jaszi, who
teaches copyright law at American University and is critical of attempts to
expand it.

Even the current wording of the DMCA has alarmed security researchers. Ed
Felten, the Princeton professor, told the Copyright Office last month that
he and a colleague were the first to uncover the so-called "rootkit" on some
Sony BMG Music Entertainment CDs--but delayed publishing their findings for
fear of being sued under the DMCA. A report prepared by critics of the DMCA
says it quashes free speech and chokes innovation.

The SIIA's Kupferschmid, though, downplayed concerns about the expansion of
the DMCA. "We really see this provision as far as any changes to the DMCA go
as merely a housekeeping provision, not really a substantive change
whatsoever," he said. "They're really to just make the definition of
trafficking consistent throughout the DMCA and other provisions within
copyright law uniform."

The SIIA's board of directors includes Symantec, Sun Microsystems, Oracle,
Intuit and Red Hat.

Jessica Litman, who teaches copyright law at Wayne State University, views
the DMCA expansion as more than just a minor change. "If Sony had decided to
stand on its rights and either McAfee or Norton Antivirus had tried to
remove the rootkit from my hard drive, we'd all be violating this expanded
definition," Litman said.

The proposed law scheduled to be introduced by Rep. Smith also does the
following:

€ Permits wiretaps in investigations of copyright crimes, trade secret theft
and economic espionage. It would establish a new copyright unit inside the
FBI and budgets $20 million on topics including creating "advanced tools of
forensic science to investigate" copyright crimes.

€ Amends existing law to permit criminal enforcement of copyright violations
even if the work was not registered with the U.S. Copyright Office.

€ Boosts criminal penalties for copyright infringement originally created by
the No Electronic Theft Act of 1997 from five years to 10 years (and 10
years to 20 years for subsequent offenses). The NET Act targets
noncommercial piracy including posting copyrighted photos, videos or news
articles on a Web site if the value exceeds $1,000.

€ Creates civil asset forfeiture penalties for anything used in copyright
piracy. Computers or other equipment seized must be "destroyed" or otherwise
disposed of, for instance at a government auction. Criminal asset forfeiture
will be done following the rules established by federal drug laws.

€ Says copyright holders can impound "records documenting the manufacture,
sale or receipt of items involved in" infringements.

Jason Schultz, a staff attorney at the digital-rights group the Electronic
Frontier Foundation, says the recording industry would be delighted to have
the right to impound records. In a piracy lawsuit, "they want server logs,"
Schultz said. "They want to know every single person who's ever downloaded
(certain files)--their IP addresses, everything."

CNET News.com's Anne Broache contributed to this report.