American peer-to-peer users worried about being sued into oblivion by the recording industry may soon have a much bigger concern: facing off against the U.S. Department of Justice.
Two senators, a Democrat and a Republican, introduced a bill on Wednesday that would unleash the world's largest law firm on Internet pirates. It would authorize the Justice Department to file civil lawsuits against people engaged in peer-to-peer copyright infringement--with the proceeds going to the company or person who owns the copyright.
"This legislation is a simple bill that would give the Department of Justice the authority to prosecute copyright violations as civil wrongs," Sen. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, said during a hearing on Wednesday. Sen. John Cornyn, a Republican, is a co-sponsor.
This is not the first time this bill, called the Pirate Act, has surfaced in Washington. Despite criticisms from civil liberties groups and complaints from peer-to-peer companies that it amounted to corporate welfare for copyright holders, the Pirate Act has cleared the Senate three times. (Here's our coverage after the June 2004 vote.)
The Pirate Act enjoys strong support from large copyright holders. The Recording Industry Association of America said on Wednesday: "We commend Senators Leahy and Cornyn for their commitment and leadership to ensuring improved enforcement of IP protection."
And Dan Glickman, chairman of the Motion Picture Association of America, said the Pirate Act will "strengthen the government's law enforcement resources to crack down on intellectual property theft."
Oddly, though, the Justice Department has been less than enthusiastic about the measure in the past. One top department official said a few years ago that the idea is "something that people should take with a grain of salt"--and while "the Justice Department is there to enforce the law, there's something to be said for those who help themselves."
The Pirate Act's portion devoted to civil copyright enforcement is identical to the 2004 version. It says that "the attorney general may commence a civil action in the appropriate United States district court against any person who engages in conduct constituting (a copyright) offense." Anyone who reproduces or distributes copyrighted works that total $1,000 is liable for punishing statutory damages.
In addition, a federal judge "shall" award "restitution to the copyright owner aggrieved by the conduct."
Criminal charges? Nah.
Under a 1997 law called the No Electronic Theft Act, federal prosecutors can file criminal charges against peer-to-peer users who make songs available for download. A July 2002 letter from prominent politicians to U.S. Attorney General John Ashcroft urged the prosecution of Americans who "allow mass copying from their computer over peer-to-peer networks."
But the Justice Department has been less than eager to file criminal charges against people like Jammie Thomas, who recently was found liable for $222,000 in damages in a lawsuit brought by the RIAA. Federal prosecutors have indicated that they're hesitant to target peer-to-peer pirates with criminal charges for two reasons: Imprisoning file-swapping teens on felony charges isn't the department's top priority, and it's difficult to make criminal charges stick.
The relative ease of winning civil cases compared to criminal prosecutions is one big reason why the RIAA and MPAA adore the Pirate Act, called the Intellectual Property Enforcement Act in its latest incarnation. The burden of proof is lower, and a civil defendant has far fewer rights under the law.
There are two other benefits for copyright holders. It's cheaper for copyright holders because they don't have to take the the risk of hiring expensive lawyers to sue a defendant who's judgment-proof (and can't cough up a check if found liable). And judges and juries may be more likely to side with Justice Department prosecutors, who claim they're looking out for the public interest, than law firms employed by the for-profit companies comprising the RIAA.
The new version of the Pirate Act, in addition to civil enforcement, also:
* Creates an "operational unit" of at least 10 FBI agents to investigate intellectual property offenses. It requires the Justice Department to assign a federal prosecutor to Hong Kong and Budapest, Hungary, "to assist in the coordination of the enforcement of intellectual property laws" and allocates $12 million per year.
* Awards $20 million per year in additional funding to the FBI and the Justice Department's criminal division to investigate computer crimes.
* Amends existing law dealing with criminal forfeiture. Says that "any property used, or intended to be used, in any manner or part to commit or facilitate the commission" of certain intellectual property offenses is subject to forfeiture. Civil forfeiture is also included. This expands on a recent counterfeit goods-related law.
News.com's Anne Broache contributed to this report.