Justice Dept. takes P2P with 'grain of salt'

Hewitt Pate, assistant attorney general for antitrust, expressed skepticism toward a bill called the Pirate Act that the Senate overwhelmingly approved in June. It's designed to curb peer-to-peer piracy by threatening individual infringers with civil lawsuits brought by the government.

That idea is "something that people should take with a grain of salt," Pate said at a conference held by the Progress & Freedom Foundation. While "the Justice Department is there to enforce the law, there's something to be said for those who help themselves."

Pate said the Justice Department's formal position on the Pirate Act and other copyright legislation would appear in a task force's report that will be presented to Attorney General John Ashcroft this fall. Ashcroft created the intellectual property task force, headed by David Israelite, in March.

The Recording Industry Association of America has lobbied for the Pirate Act as a way to give federal prosecutors the option of filing civil suits in addition to their current ability to seek criminal sanctions. Mitch Glazier, senior vice president of government relations at the RIAA, said on Monday that Pate's comments weren't that negative. If the Pirate Act becomes law, Glazier said, prosecutors would "now have a choice of how badly they want to hurt the violator."

The Pirate Act has raised alarms among copyright lawyers and lobbyists for peer-to-peer firms, who have been eyeing the recording industry's lawsuits against thousands of peer-to-peer users with trepidation. The Justice Department, they warn, could be far more ambitious.

"Tens of thousands of continuing civil enforcement actions might be needed to generate the necessary deterrence," Sen. Orrin Hatch, R-Utah, said when announcing his support for the Pirate Act. "I doubt that any nongovernmental organization has the resources or moral authority to pursue such a campaign."

Under a 1997 law called the No Electronic Theft Act, federal prosecutors can file criminal charges against peer-to-peer users who make a large number of songs available for download. A July 2002 letter from prominent congressmen 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 not one peer-to-peer criminal prosecution has taken place in the United States. The Justice Department has indicated that it won't target peer-to-peer networks for two reasons: Imprisoning file-swapping teens on felony charges isn't the department's top priority, and it's always difficult to make criminal charges stick.

Criticism of the Pirate Act in the Justice Department's final report could imperil its chances on Capitol Hill, where the House of Representatives has not held one hearing on the measure. Pate "gave a pretty strong message against the Pirate Act," said Sarah Deutsch, vice president and associate general counsel at Verizon.

Also in his speech:

•  Pate called for mandatory eavesdropping access to be provided by broadband and Internet phone companies: "As voice over Internet Protocol (VoIP) becomes more and more important, it is not going to be acceptable for it to be closed to law enforcement...It is important that we do something to address national security issues."

•  Pate took aim at what he called an "anticopyright faction" that dislikes big media. That's an "overreaction" that "needs to be thought about," Pate said.

•  He noted that European antitrust officials are more regulatory than their U.S. counterparts, especially in targeting companies like Microsoft. It's unclear how European antitrust rules are "going to be appropriately applied to companies that have achieved that position in a competitive market without government intervention."