[Infowarrior] - "Attempted infringement" appears in new House intellectual property bill

[Richard Forno]

"Attempted infringement" appears in new House intellectual property bill

By Nate Anderson | Published: July 30, 2007 - 01:11AM CT

http://arstechnica.com/news.ars/post/20070730-attempted-infringment-appears-
in-new-house-intellectual-property-bill.html

Back in May, the Justice Department issued some proposed legislation to
tighten US intellectual property laws and to criminalize some forms of
"attempted infringement." Now, legislation based on the proposals has been
introduced in Congress by Rep. Steve Chabot (R-OH), complete with stiffer
jail terms for violators and the controversial "attempted infringement"
clause.

H.R. 3155, the Intellectual Property Enhanced Criminal Enforcement Act of
2007, aims widely. Everything gets a section: unauthorized recording of
films in theaters, circumventing copy protection, trafficking in counterfeit
goods. The bill even directs the Attorney General to send federal
prosecutors to take up permanent residence in Hong Kong and Budapest and
specifies the number and makeup of FBI investigative teams.

In most cases, the bill appears to simply double existing penalties. Section
12 alone, for instance, makes a 10-year prison term into a 20-year term,
three years into six, five into 10, and six into 12. Poof! More prison time!

One of the bill's controversial features is the fact that people can be
charged with criminal copyright infringement even if such infringement has
not actually taken place. "Any person who attempts to commit an offense
under paragraph (1) shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the
attempt," says the bill.

While copyright infringement is sometimes believed to be solely a civil
matter, that's not the case. US Code 17, section 506 (a) spells out the
conditions for criminal infringement under which the government can actually
do the prosecuting, and they are quite modest. The infringement must be
willful, and the material in question must have a total retail value of over
$1,000. This wouldn't be a difficult threshold for many P2P users to clear,
except for the fact that this section also requires that the infringement be
done "for purposes of commercial advantage or private financial gain."

The attempted infringement clause actually falls under this criminal
infringement statute, meaning that it won't apply to file-sharing unless the
courts suddenly take a hugely expansive view of "commercial advantage or
private financial gain," and it's unlikely the government has some new
interest in such cases.

The bill is full of the sort of things that groups like the EFF aren't going
to like, and in fact the EFF has already issued a statement condemning the
legislation. One of their concerns is that a small change to the law could
have big effects on casual file-sharers for a different reason: P2P users
could face greater penalties for infringement after statutory damages are
expanded.

The bill allows "a judge to dole out damages for each separate piece of a
derivative work or compilation, rather than treating it as one work," wrote
Derek Slater, "for example, copying an entire album could translate into
damages for each individual track, even if the copyrights in those tracks
aren't separately registered."