As I said a few posts ago, it’s time for Americans to realize that our leaders have gone a bit jail-happy. No better example than this, which I thought was from The Onion, but is, in fact, true, and is, in fact, supported conceptually by that bastion of liberalism, the motion picture industry. From C|NET News Blog:
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.”
Wired’s Mathew Honan thinks Gonzalez’ bill “faces a tough haul in Congress.” He reports:
Before the Intellectual Property Protection Act of 2007 can even go to Congress, it will need to be sponsored by a member of the House or Senate. The Justice Department has yet to find a sponsor, although it’s hoping that a meeting with Hill staffers will flush one out. And while the DOJ claims to have bipartisan support for its bill, a similar measure introduced last year failed to make it to a vote.
“We’re still reviewing the bill, but based on our initial review, we have some concerns,” said Corynne McSherry, a staff attorney with the Electronic Frontier Foundation. “One of our biggest concerns is that it criminalizes attempted copyright infringement.”
McSherry said this is unprecedented in copyright law, and noted that the bill is ambiguous: “It’s not totally clear what would count as attempting copyright infringement.”
Essentially, the bill would turn copyright law into something more akin to existing drug laws: The government could seize personal property, wiretaps would become legal for the first time, violators could face life in prison and, in an ambiguous and far-reaching provision, the mere attempt to violate a copyright would become a crime.
Annalee Newitz from the Wired-affliliated blog Underwire says:
If this legislation becomes law, here are some things you could look forward to: 1-10 years in prison for attempting to engage in copyright infringement that would bring no profit to you (i.e., trying but failing to copy Doctor Who DVDs for your girlfriend); prison for life if you endangered someone by using pirated software (if a hospital got somebody’s medical records confused while using an infringing copy of Windows, for instance); being wiretapped by law enforcement investigating cases of attempted copyright infringement (now that your efforts to infringe Doctor Who DVDs for your girlfriend have been discovered, your cell phone has been tapped).
Sounds great, huh? But wait, there’s more. The IPPA promises enhanced sentencing for violating the DMCA, and will allow law enforcement to seize computers more easily. Buckle up, techno-wonks. It’s gonna be a rough ride if this bill makes it through Congress.
This is the problem with “get-tough” policies that allow politicians to posture against crime by lengthening prison sentences. There’s always a constituency to “get tough” on white collar crime. There’s always a constituency to “get tough” on drug dealers. But once you’ve let the political community establish the “get-tough” precedent for unpopular sorts of non-violent crimes, then here’s what happens: Well-connected big businesses are given a wide-open path to plead that actions they don’t like are crimes, too, and should get the same “get-tough” treatment. And as the unanimous bipartisan Senate vote for the Digital Millennium Copyright Act demonstrates, when business blows its horn, the politicians all come running.