In addition to the prison term, the Artists' Rights and Theft Prevention Act would punish making such movies available on a public "computer network" as a federal felony with a fine of up to $250,000. It would not require that any copyright infringement actually take place.
Senators John Cornyn, R-Texas, and Dianne Feinstein, D-Calif., plan to introduce the legislation at a press conference in Washington, D.C., on Thursday. Joining them at the event will be actress Bo Derek, Motion Picture Association of America (MPAA) President Jack Valenti, and Mitch Bainwol, chairman of the Recording Industry Association of America.
Hollywood studios have fretted for years about Internet distribution of prerelease movies, meaning films that have not appeared on DVD or in theaters. Footage of "Star Wars: Episode II," "Tomb Raider" and "The Hulk," has reportedly surfaced on peer-to-peer networks before their commercial distribution. In September, the major studios responded by halting their normal practice of sending DVD "screeners" to Academy Award judges.
A copy of the bill seen by CNET News.com, marked "Discussion Draft," represents one of the fiercest attacks yet on peer-to-peer networks from copyright holders' allies on Capitol Hill.
The threat of a three-year prison term kicks in when anyone makes an illicit copy of a movie "available on a computer network accessible to members of the public," when the film "was intended for commercial distribution but had not been so distributed at the time." Once the film is commercially distributed, the felony penalties appear to no longer apply.
An aide to Cornyn said it is designed to expand the 1997 No Electronic Theft Act, which already makes a federal felony. The draft bill will "help law enforcement pursue those who are already violating the law by establishing, by presumption, that if someone willfully puts out a pre-release file you have reached the economic harm threshold, which is standard under the NET Act," the aide said in an e-mail message.
The aide said the prison terms are "already the law, and if someone distributes a pre-release today and the Justice Department can figure out when that person did it and how, they can (be prosecuted). This legislation simply makes it presumptive that if someone distributes a pre-release that it reaches that level, facilitating law enforcement. The punishment does not change."
Peter Jaszi, a professor at American University who teaches copyright law, said he is "deeply troubled" by the wording of the draft legislation, because it does not say any actual copyright infringement must take place--only that the file be available in a shared folder, Web site or FTP (File Transfer Protocol) site. "It says we don't care if anybody got any of these copies," Jaszi said. "We're going to conclude that at least 10 people did. It relieves the copyright owner of having to prove that any violation of their rights actually happened."
MPAA spokesman Rich Taylor said "this legislation will go a long way toward targeting one of the most serious contributors to piracy right now, which is the practice of camcording motion pictures. It's the first time the U.S. Senate has had legislation that specifically addresses the threat of camcording."
"Piracy for too long has been high-reward and low-risk," Taylor said. "Legislation such as that being introduced tomorrow will go a long way toward changing that equation."
The Cornyn-Feinstein bill also creates another federal felony, punishable by up to five years in prison, for using "an audiovisual recording device" in a movie theater to make a copy of a film and boosts civil penalties available to MPAA member companies when suing over prerelease movies placed on the Internet.
Sens. Orrin Hatch, R-Utah, chairman of the Judiciary Committee, and Lindsey Graham, R-S.C., are co-sponsors of the bill.
A related proposal has been introduced in the House of Representatives. It covers surreptitious recording in theaters but does not include the three-year prison term for making a prerelease movie available online.