The Justice Dept.'s proposal on digital copyright protection puts violators in the same league as terrorists and criminals. It's excessive
The good news about recent proposals from the Justice Dept. (DOJ), regarding the enforcement of intellectual property protection, is that they show the DOJ is committed to recycling. The bad news is that it's recycling ideas that were bad in 2005 when they first appeared, and continue to be ill-conceived today.
The proposal clearly demonstrates the dreams of many in the content community, including trade groups such as the Recording Industry Association of America and the Motion Picture Association of America. For the rest of us, and for technology companies like Google (GOOG), Cablevision (CVC), Sling Media, or TiVo (TIVO), the proposals are a nightmare.
We support the enforcement of copyright law and the protection of copyright holders' rights. But we are concerned that the DOJ proposals would enforce copyright law in ways never before contemplated. Indeed, the DOJ is better suited to chasing down drug dealers and terrorists than it is to dealing with small tech companies or individual computer users. This proposal even drags the Homeland Security Dept. into copyright enforcement.
A Big Target for Enforcers
Most problematic is the idea of making "attempted" copyright infringement a criminal offense. No longer would you need to actually infringe on something to find yourself subject to the full panoply of investigatory tools available to federal prosecutors and law enforcement agencies. The government would be allowed to wiretap and read the personal communications of anyone suspected of the vague offense of "attempted" copyright infringement, a crime for which there is no definition. Thus, an attempt to download an illegal MP3 would join the ranks of such "similar" crimes as bribing officials, taking hostages, and unlawful use of explosives.
Adding attempted infringement to the mix would mean that individuals and companies could be investigated and prosecuted even when they've caused no harm. Where do you draw the line at what is an attempt? Is a startup's business plan, one that fails to successfully navigate this incredibly complex area of law, an attempt? What about a student installing a file-sharing program, without downloading copyrighted materials?
The bar for such an offense is startlingly low, making every person and company a more ready target for the enforcers.
Enlisting the Border Patrol
The penalties in this bill are also out of touch with reality and more appropriate to violent criminal offenses.
The DOJ would require courts to confiscate and destroy or dispose of "any property used, or intended to be used, in any manner or part, to commit or facilitate" infringement. Such a provision would put an offender's computer at risk of being auctioned off like a car or boat seized from a drug dealer.
These penalties even extend to activities that aren't traditional copyright infringement, such as some questionable precepts of the Digital Millennium Copyright Act (DMCA). For instance, one regularly criticized provision of the DMCA is that it prevents users from circumventing or bypassing technological locks that control access to digital media, even when they are doing so for legitimate, legal uses of the copyrighted work. The DOJ's bill would add to this absurdity with these harsher penalties.
Even the extra penalties aren't enough for the beneficiaries of the DOJ proposal. It must be a comfort to Time Warner (TWX) or Sony (SNE), or even individual artists, to know this proposal would enable them to pay a fee to have the U.S. Customs & Border Protection notify them whenever someone tries to import bootleg copies of "sounds and images of a live musical performance." Apparently, our border patrol and customs agents don't have enough to do, so they can be hired out as enforcers for a favored industry.
Seeing Criminals Everywhere
What's missing from the DOJ's proposal is any sense of realization that consumers actually have the legal right to use copyrighted material without permission. Legislation (HR 1201), proposed by representatives Rick Boucher (D-Va.) and John Doolittle (R-Calif.), would restore some balance by writing into law the principal upheld in 1984 by the Supreme Court, which ruled that device manufacturers aren't infringers just because their products can be used for substantial non-infringing uses. The bill also would allow for some exemptions from the DMCA to permit circumvention of digital rights management while putting some limits on statutory damages.
Instead, the DOJ proposal treats everyone as a potential criminal. It fails to recognize the benefits of technological innovation by companies such as BitTorrent and YouTube—benefits that even record and movie companies are beginning to acknowledge through commercial agreements.
We can only hope that the 2007 version of these proposals suffers the same fate as the 2005 version—a descent into the obscurity they deserve.