WASHINGTON--If you've ever used a peer-to-peer network and swapped
copyrighted files, chances are pretty good you're guilty of a federal felony.
It doesn't matter if you've forsworn Napster, uninstalled Kazaa and now are
eagerly padding the record industry's bottom line by snapping up $15.99 CDs
by the cartload.
Be warned--you're what prosecutors like to think of as an unindicted
federal felon.
I'm not joking. A obscure law called the No Electronic Theft (NET) Act that
former U.S. President Bill Clinton signed in 1997 makes peer-to-peer (P2P)
pirates liable for $250,000 in fines and subject to prison terms of up to
three years. (You may want to read it, since you'll likely be hearing more
about it soon.)
That's a long time to spend cooling your heels in Club Fed.
Yet something strange is going on here. So far the Justice Department has
made precisely zero prosecutions of peer-to-peer users under the NET Act.
This odd delay is not because peer-to-peer piracy is legal. It's not. The
NET Act covers people who willfully participate in the "reproduction or
distribution" of copyrighted works without permission, when that activity
is not covered by fair use rights.
The law even grants copyright holders the right to hand a "victim impact
statement" to the judge at your trial, meaning you can expect an appearance
from the Recording Industry Association of America (RIAA), the Motion
Picture Association of America (MPAA) or the Business Software Alliance
(BSA), depending on what kind of files were on your hard drive. You'll no
longer have that hard drive, of course, because it'll have been seized by
the FBI, and you'll be in jail.
Fretting that not enough peer-to-peer pirates are already in the slammer, a
band of congressmen asked Attorney General John Ashcroft last July to begin
some NET Act prosecutions, pronto. Their letter complained of "a staggering
increase in the amount of intellectual property pirated over the Internet
through peer-to-peer systems." The 19 politicos--including Sen. Joseph
Biden, D-Del., Rep. James Sensenbrenner, R-Wis., and Sen. Dianne Feinstein,
D-Calif.--urged Ashcroft "to prosecute individuals who intentionally allow
mass copying from their computer over peer-to-peer neworks."
It didn't take long for the Justice Department to respond. A few weeks
later, John Malcolm, a deputy assistant attorney general, said to expect
some NET Act prosecutions. "There does have to be some kind of a public
message that stealing is stealing is stealing," said Malcolm, who oversees
the arm of the Justice Department that prosecutes copyright and computer
crime cases.
Since then, however, there's been nothing but silence. The Justice
Department has been tight-lipped about its plans, and did not reply to a
request for comment on Friday.
To duck a conviction, you'd have to, in essence, prove you were an idiot.
Not a problem for some, but a big problem for most file-sharers, I suspect.
--Polk Wagner, assistant professor, University of Pennsylvania Law School
Yet there are signs that prosecutions are coming soon. A person close to
the RIAA told me that it has had recent meetings with the Justice Department.
A second hint that pressure on the Justice Department is increasing lies in
a statement of principles that the RIAA signed this month with the Computer
Systems Policy Project and the BSA. The trio of groups say they want more
"governmental enforcement actions against infringers."
For its part, the RIAA sent me a statement on Friday that seems to back
that up: "We are in constant communication with various law enforcement
agencies about all forms of piracy. It's illegal, and there clearly is an
important role that law enforcement can play...It's important to remember
that a 'Kazaa user' trafficking in copyrighted music without permission is
doing something that is clearly illegal, as numerous courts have held that
uploading and downloading copyrighted works without permission constitutes
direct infringement. And it is well-established that copyright infringement
can be a federal crime, so government enforcement seems perfectly
appropriate."
Bob Kruger, BSA's vice president of enforcement, says his group is not
actively lobbying for prosecutions of peer-to-peer users, but would not
oppose them, either. "Industry has an obligation to make law enforcement
aware of the problems that beset it," Kruger said. "Congress has recognized
that government enforcement efforts are part of the overall solution."
History of the law
Rampant file-swapping is precisely the activity that the NET Act was
designed to punish. Rep. Bob Goodlatte, R-Va., the co-chairman of the
Congressional Internet Caucus, drafted the law to close what had become
known as the "LaMacchia Loophole."
In 1994, David LaMacchia was a junior at the Massachusetts Institute of
Technology who was charged with wire fraud for creating a file-swapping
site on the Internet. But a federal judge dismissed the criminal charges,
ruling that although LaMacchia could be sued in civil court, he was not
guilty as charged. "It is not clear that making criminals of a large number
of consumers of computer software is a result that even the software
industry would consider desirable," said U.S. District Judge Richard Stearns.
In an e-mail to me, Goodlatte said: "We would like to see more done to help
guard against the wholesale violation of our copyright laws. We have helped
secure additional funding for the Department of Justice to enforce the NET
Act."
The NET Act works in two ways: In general, violations are punishable by one
year in prison, if the total value of the files exceeds $1,000; or, if the
value tops $2,500, not more than five years in prison. Also, if someone
logs on to a file-trading network and shares even one MP3 file without
permission in "expectation" that others will do the same, full criminal
penalties kick in automatically.
The odds of any specific person getting busted are pretty low, but
someone's going to be a test case.
"I'd imagine there are, at minimum, several thousand file-swappers meeting
this definition," said Polk Wagner, who teaches copyright law at the
University of Pennsylvania. To duck a conviction, said Polk, "you'd have
to, in essence, prove you were an idiot. Not a problem for some, but a big
problem for most file sharers, I suspect."
Jessica Litman, a professor at Wayne State University Law School, says
achieving a conviction wouldn't be trivial for prosecutors. "For purposes
of a criminal prosecution, you'd have to show more than that the defendant
made the files available--you'd have to show that she actually made or
distributed copies," Litman says. "Not too difficult using today's tools,
but you would need to show the actual copying of the file by third parties
rather than merely proving that defendant downloaded the files into her
share directory."
There already have been successful prosecutions under the NET Act of Web
pirates--but not of peer-to-peer pirates.
In 2001, a 21-year-old Michigan man named Brian Baltutat was successfully
prosecuted under the NET Act for posting a mere 142 software programs on
the "Hacker Hurricane" Web site. Jason Spatafore, 25, pleaded guilty to
posting just one movie on the Web--"Star Wars: Episode I - The Phantom
Menace"--in December 2000.
A quick check of Kazaa on Friday afternoon showed that there were 4.1
million users online, sharing some 800 million files. The odds of any
specific person getting busted are pretty low, but someone's going to be a
test case. Got your lawyer ready?
http://news.com.com/2010-1071-982121.html?tag=fd_nc_1
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