[Infowarrior] - Gonzales proposes new crime: "Attempted" copyright infringement

[Richard Forno]

Gonzales proposes new crime: "Attempted" copyright infringement
Posted by Declan McCullagh
http://news.com.com/8301-10784_3-9719339-7.html

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
pre-release 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 is problematic and controversial.

* Increase penalties for violating the Digital Millennium Copyright Act's
anti-circumvention regulations. Currently 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 too.

* Add penalties for "intended" copyright crimes. Currently certain copyright
crimes require someone to commit the "distribution, including by electronic
means, during any 180-day period, of at least 10 copies" valued at over
$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 compact discs 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 the GOP. (A few years ago, Republicans even savaged
fellow conservatives for allying themselves too closely with copyright
holders.)

A spokeswoman for Rep. Howard Berman, the California Democrat who heads the
House Judiciary subcommittee that focuses on intellectual property, said the
congressman is reviewing proposals from the attorney general and from
others. The aide said the Hollywood politician plans to introduce his own
intellectual property enforcement bill later this year but said 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, who's 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
announced with fanfare last April never went anywhere.

News.com's Anne Broache contributed to this report