DOJ to swappers: Law's not on your side

John Malcolm, a deputy assistant attorney general, said Americans should realize that swapping illicit copies of music and movies is a criminal offense that can result in lengthy prison terms.

"A lot of people think these activities are legal, and they think they ought to be legal," Malcolm told an audience at the Progress and Freedom Foundation?s annual technology and politics summit.

Malcolm said the Internet has become "the world's largest copy machine" and that criminal prosecutions of copyright offenders are now necessary to preserve the viability of America's content industries. "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.

In an interview, Malcolm would not say when prosecutions would begin. The response to the Sept. 11 terrorist attacks temporarily diverted the department's resources and prevented its attorneys from focusing on this earlier, he said.

A few weeks ago, some of the most senior members of Congress pressured the Justice Department to invoke a little-known law, the No Electronic Theft (NET) Act, against peer-to-peer users who swap files without permission.

Under the NET Act, signed by President Clinton in 1997, it is a federal crime to share copies of copyrighted products such as software, movies or music with anyone, even friends or family members, if the value of the work exceeds $1,000. Violations are punishable by one year in prison, or if the value tops $2,500, "not more than five years" in prison.

Cary Sherman, president of the Recording Industry Association of America (RIAA), said his industry would "welcome" prosecutions that send a message to song-swappers.

"Some prosecutions that make that clear could be very helpful...I think they would think twice if they thought there was a risk of criminal prosecution," said Sherman, who was on the same conference panel.

Christopher Cookson, executive vice president of Warner Bros. and another panelist, said there was "a need for governments to step in and maintain order in society."

Swapping files in violation of the law has always been a civil offense, and the RIAA and the Motion Picture Association of America (MPAA) have the option of suing individual infringers and seeking damages.

But, Malcolm said, criminal prosecutions can be much more effective in intimidating file-swappers who have little assets at risk in a civil suit. "Civil remedies are not adequate...Law enforcement in that regard does have several advantages," Malcolm said. "We have the advantage, when appropriate, of opening up and conducting multi-jurisdictional and international investigations.

"Most parents would be horrified if they walked into a child's room and found 100 stolen CDs...However, these same parents think nothing of having their children spend time online downloading hundreds of songs without paying a dime."

Gary Shapiro, president of the Consumer Electronics Association, said he was skeptical about the view that peer-to-peer piracy should be a criminal offense. "If we have 70 million people in the United States who are breaking the law, we have a big issue."

The DOJ already has used the NET Act to imprison noncommercial software pirates, which software lobbyists hailed as "an important component of the overall effort to prevent software theft."

During his confirmation hearing in June 2001, Attorney General John Ashcroft told Congress that "given the fact that much of America's strength in the world economy is a result of our being the developer and promoter of most of the valuable software, we cannot allow the assets that are held electronically to be pirated or infringed. And so we will make a priority of cybercrime issues."

The letter from Congress complains of "a staggering increase in the amount of intellectual property pirated over the Internet through peer-to-peer systems." Signed by 19 members of Congress, including Sen. Joseph Biden, D-Del., Rep. James Sensenbrenner, R-Wis., and Sen. Dianne Feinstein, D-Ca., the letter urged Ashcroft "to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer networks."