Congress and Copyrights: A Busy Legislative Year
Summary: Congress has been busy targeting copyright infringers this summer and fall, introducing three bills that would make prosecution of copyright law violators easier, make the attempt to infringe another's copyrighted work a criminal act, and place new burdens on colleges to police music file downloaders.
- The Intellectual Property Enhanced Criminal Enforcement Act of 2007
H.R. 3155-IH was introduced to the House of Representatives on July 24, 2007, by Rep. Steve Chabot (R-OH) (see related post here). The bill would make the attempt to commit copyright infringement a crime, just as much as the actual completed crime itself. On Aug 10, 2007, the bill was referred to the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security.
- The Intellectual Property Enforcement Act of 2007
S.2317 (also here) was introduced in the Senate on November 7, 2007, by Sen. Patrick Leahy (D-VT) (co-sponsored by Sen. John Cornyn (R-TX)). Sec. 2 of the Act would grant the Attorney General power to commence a civil action against any person who engages in conduct constituting an offense under section 506 of the Copyright Act (related to criminal copyright infringement). Sec. 506 currently requires a showing of willful copyright infringement. In contrast, the burden of proof in a civil action under the new law would be by a preponderance of the evidence, which presumably would make it easier to find liability.
Sec. 14 of the Act would add civil and criminal forfeiture, destruction, and restitution provisions to 18 U.S.C. 113.
In his statement about the so-called PIRATE ACT, Sen. Leahy said:
"This legislation is a simple bill that would give the Department of Justice the authority to prosecute copyright violations as civil wrongs. The PIRATE Act has passed the Senate on three separate occasions; this should be the Congress in which it becomes law."
Status: Senate Judiciary Committee hearing, November 7, 2007.
- College Opportunity and Affordability Act of 2007
H.R.4137 was introduced in the House on November 9, 2007, by Rep. George Miller (D-CA) (co-sponsored by Ruben Hinojosa (D-TX)). Sec. 487 of the Act would amend 20 U.S.C. 1092(a)(1) to include a new provision entitled "Institutional Policies and Sanctions Related to Copyright Infringement," which would include an annual disclosure requirement by educational institutions that
- Explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities,
- Provides a summary of the penalties for violation of Federal copyright laws,
- Provides a description of the institution's policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution's information technology system, and
- Provides a description of actions that the institution takes to prevent and detect unauthorized distribution of copyrighted material on the institution's information technology system.
Sec. 494 of the Act, entitled "Campus-Based Digital Theft Prevention," would require colleges to:
- Make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and
- Develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.
Status of bill: Nov 15, 2007: House Education and Labor: Ordered to be Reported (Amended) by the Yeas and Nays: 45 - 0 (GovTrack).
Below is the University of Maryland's open letter to the University Community on illegal file sharing over University networks:
"The university is greatly concerned about the potential effects of illegal file sharing on our information technology networking infrastructure and on the personal liability of our students. This letter summarizes actions the university will take over the next few days to protect our community.
"Effective Monday, October 8, 2007, the university will block use of two peer-to-peer (P2P) file sharing programs on its network -- Ares and LimeWire. Recognizing the accelerating demands on bandwidth from educational commitments of greater priority, we are unable to justify supporting P2P programs that are instrumental in the sharing of music and movies in violation of copyright law. In the competitive allocation of computing resources, the university may not responsibly support activity that places students in serious legal and financial jeopardy. To do otherwise would also compromise a fundamental social value: respect and acknowledgment of the creative achievements of others.
"In addition to blocking Ares and LimeWire, the university will expand enforcement of university network rules against facilitating illegal file sharing. One example is the campus DC++ hub, which has been featured recently in The Diamondback. The operators of DC++ hubs will be offered an opportunity to demonstrate that their network usage conforms to the University of Maryland Policy on Acceptable Use of Information Technology Resources and the Student Guidelines for Network Acceptable Use. Should a specific operator’s network usage not be shown to be in conformance, that operator will be asked to bring the usage into compliance. Failure to do so will subject the operator to administrative action, including revocation of access to Internet resources through the university network system and/or referral to the Office of Student Conduct.
"We regret the inconvenience that these actions will cause for those using the university network services and file sharing software legally and responsibly. However, we must implement these measures to protect our community from the effects of illegal file sharing.
Jeffrey C. Huskamp
Vice President and CIO"
Peggy Noon, scholarly communication librarian and special assistant to the provost for copyright administration at North Carolina State University, equates the College Opportunity and Affordability Act of 2007 to Shooting Fish in a Barrel, and questions why it has become higher education's role to correct student's illegal file sharing behavior:
"Although it is inarguably part of the university's role to urge their students to comply with the law, behave in ethical manners, and teach that by example, we are only their teachers.
"We are not their parents and we are not the police. We had no role in instilling or molding their characters or their ethical or religious belief system. In fact, we didn't even teach them the computer skills necessary to accomplish P2P sharing. They came to us with these behaviors and skills fully set and continually reinforced by their peers.
"So when did we become responsible (in a legal and money sense) for the students P2P file sharing? If a student uses dormitory phones to conduct drug deals or extortion, is the university responsible? Should phone access be terminated? What if our students steal cable TV service" Should Congress pass a bill that withholds federal funding from our schools until the cable TV companies are financially satisfied? Since when did higher education become responsible for the profit margin of the entertainment industry?"
