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Pirate this, go to jail

That's the mood in Congress, says CNET News.com's Washington watcher Declan McCullagh, who writes how legislators are responding to increasing pressure to do something--anything--about digital piracy.

WASHINGTON--Sen. Joseph Biden has become one of the newest field marshals in Congress' intellectual property wars.

After the 59-year old Delaware Democrat took over the Foreign Relations committee last year, the software and entertainment industries enlisted him in their anti-piracy struggles. That prompted Biden to convene a hearing where he denounced copyright thievery in stentorian tones. "Windows XP was available for illegal use on the streets of Moscow two months before it was released in the U.S. by Microsoft," Biden said. "Every episode of "Seinfeld" is now available to download free to anyone with access to the Internet."

At the hearing in February, Biden released a 52-page report written by his aides and titled: "Theft of American Intellectual Property: Fighting Crime Abroad and At Home." One section devoted to counterfeit products expressed the worry that "counterfeiters flood markets with their underpriced products and steal a great deal of revenue."

A few weeks later, Biden introduced a bill titled the "Anticounterfeiting Amendments of 2002." It originally targeted the kind of large-scale pirates who manufacture fake Windows holograms, but in a little-noticed move this month before being sent to the Senate floor, the proposed legislation was rewritten to encompass technology used in digital rights management.

Biden's new bill would make it a federal felony to try and trick certain types of devices into playing your music or running your computer program. Breaking this law--even if it's to share music by your own garage band--could land you in prison for up to five years. And that's not counting the civil penalties of up to $25,000 per offense.

Biden's new bill would make it a federal felony to try and trick certain types of devices into playing your music or running your computer program.
"Say I've got an MP3 collection and I buy a new nifty player from Microsoft that only plays watermarked content, and I forge the watermark to allow my legal MP3 collection to play," says Jessica Litman, who teaches intellectual property law at Wayne State University. "It is certainly the case that if I pass that around, I could be trafficking (in violation of the law)."

Biden's proposed additions to copyright law come as Congress is under increasing pressure. In the last few weeks, Hollywood and the music industry have stepped up their demands for more authority to curtail digital piracy, backing a new bill to allow hacking of peer-to-peer networks, trying to limit Americans' rights to record TV and radio broadcasts, and predicting even more legislation in the next few months.

Then there's Microsoft's Palladium approach and the separate Trusted Computing Platform Alliance (TCPA) project, both of which anticipate the embedding of special security chips in PCs. Since Biden's bill prohibits "illicit authentication features" attached to software, it could become unlawful to distribute software that would run on a Palladium-outfitted computer without Microsoft's permission.

It's not clear why Biden made the changes during the July 18 vote in the Senate Judiciary committee, and a spokesman did not respond to a request for comment on Friday. Biden's original bill covered only "physical features" such as holograms or special boxes used to certify software, CDs, or DVDs as authentic. The revised version, however, covers "any feature" used to guarantee authenticity.

Merely creating a fake watermark or digital signature would not be illegal, but "trafficking" in it or redistributing the file would. In addition to criminal penalties, the bill permits a company whose watermark or digital signature was used to sue for damages "of not less than $2,500 or not more than $25,000, as the court considers appropriate."

Biden's anti-counterfeiting bill has broad support in the Senate, where it now awaits what's expected to be an overwhelmingly positive floor vote. Its sponsors include key Democrats and Republicans, including Senate Commerce chairman Fritz Hollings, D-S.C., Senate Judiciary chairman Patrick Leahy, D-Vt., and Orrin Hatch, R-Utah, the top GOPer on the Judiciary committee.

"The bill has been put on a fast track to enactment, and there currently appears to be little likelihood of a public debate similar to the one surrounding Senator Hollings' digital rights management proposal," says Stewart Baker, an attorney at Steptoe and Johnson who specializes in technology law. Baker is talking about Hollings' plan to forcibly implant copy-protection technology into nearly every PC and electronics device, an idea that's backed by Walt Disney but has been savaged by programmers and technology firms.

"It is possible, for example, that the bill allows criminal prosecutions as well as private suits against anyone who uses a black Magic Marker to disable copy protection features built into some recent music CDs," Baker says. "At $25,000 a CD, that could be a very expensive experiment."

There is a similar bill in the House of Representatives, titled the Intellectual Property Protection Act of 2002. But that version is akin to Biden's original bill and covers only "physical authentication features."

Some lawyers who specialize in copyright law say they have no problem even with Biden's revised legislation.

"I think this is filling in the gaps for intellectual property owners and keeping pace with technological change," says Megan Gray, a litigator in Washington DC who represents trademark and copyright owners. "It's entirely appropriate."

Consumers soon will be offered more and more hardware devices that rely on electronic watermarks, digital signatures, or other cryptographic means to thwart piracy and improve security.
Gray believes that forging a digital watermark or signature should be just as unlawful as forging a physical watermark or signature. "It's like taking a T-shirt that you've put a design on and then attaching a Disney hologram or the NBA championship hologram, distributing it, and giving people the impression that it's an authorized apparel item from the NBA or Disney," Gray says. "That's a deceptive practice that we have a long history of banning."

While it's unclear what Biden hopes to accomplish with his new bill, it is clear that it's forward-looking: Consumers soon will be offered more and more hardware devices that rely on electronic watermarks, digital signatures, or other cryptographic means to thwart piracy and improve security.

"The world is moving toward closed digital rights management systems where you may need approval to run programs," says David Wagner, an assistant professor of computer science at the University of California at Berkeley. "Both Palladium and TCPA incorporate features that would restrict what applications you could run."

Microsoft originally applauded Biden's bill when it covered only physical counterfeiting, saying in a press release in April that it closes "a significant gap in federal protection of copyrighted works including software." Current federal law covers only "counterfeit labels," not physical holograms or other packaging material.

But Microsoft indicated on Friday that it had problems with Biden's revisions. "Those issues, from our perspective, highlight the reason why we support the legislation as it was originally written," said spokesman Jon Murchinson.

Filling a gap in the DMCA?
Dan Burk, who teaches intellectual property law at the University of Minnesota, says that Biden may have revised his bill to pick up where the controversial 1998 Digital Millennium Copyright Act (DMCA) left off.

Burk says that if Biden's proposal were to become law, it would be "a real problem" for researchers working on steganography, a technique used to conceal information in computer files. "This bill doesn't say 'digital watermark' but the language about numbers, codes, and symbols may be broad enough to cover steganography, which suggests that it was altered in an attempt to plug a hole left in the original DMCA," Burk says.

Biden might revise his proposal before it's sent to the Senate floor for a vote, and the bill is not guaranteed to be enacted into law this year. There's a simple reason for that: Congress only has about four or five weeks left before it's scheduled to adjourn so politicians can go home and campaign before the November elections.

But in an environment where politicos are more worried about campaigning against copyright thieves than about carefully weighing the impact that new laws have on technology, don't expect caution to prevail. "Copyrights mean nothing if government authorities fail to enforce the protections they provide intellectual property owners," Biden said in April. "The criminal code has not kept up with the counterfeiting operations of today's high-tech pirates, and it's time to make sure that it does."