[Ecommerce] New U.S. copyright bill will make DMCA worse

[Judit Rius Sanjuan]

 From BNA Internet Law News, compiled by Prof. Michael Geist

CONGRESS READIES NEW DIGITAL COPYRIGHT BILL
A proposed copyright law seen by CNET News.com would expand the DMCA's
restrictions on software that can bypass copy protections and grant
federal police more wiretapping and enforcement powers. The draft
legislation, created by the Bush administration and backed by Rep. Lamar
Smith, already enjoys the support of large copyright holders such as the
Recording Industry Association of America. Smith is the chairman of the
U.S. House of Representatives subcommittee that oversees
intellectual-property law.

Congress readies broad new digital copyright bill

By Declan McCullagh
http://news.com.com/Congress+readies+broad+new+digital+copyright+bill/2100-=
1028_3-6064016.html

Story last modified Mon Apr 24 08:07:07 PDT 2006

For the last few years, a coalition of technology companies, academics
and computer programmers has been trying to persuade Congress to scale
back the Digital Millennium Copyright Act.

Now Congress is preparing to do precisely the opposite. A proposed
copyright law seen by CNET News.com would expand the DMCA's restrictions
on software that can bypass copy protections and grant federal police
more wiretapping and enforcement powers.

The draft legislation, created by the Bush administration and backed by
Rep. Lamar Smith, already enjoys the support of large copyright holders
such as the Recording Industry Association of America. Smith is the
chairman of the U.S. House of Representatives subcommittee that oversees
intellectual-property law.

Smith's press secretary, Terry Shawn, said Friday that the Intellectual
Property Protection Act of 2006 is expected to "be introduced in the
near future."

"The bill as a whole does a lot of good things," said Keith
Kupferschmid, vice president for intellectual property and enforcement
at the Software and Information Industry Association in Washington, D.C.
"It gives the (Justice Department) the ability to do things to combat IP
crime that they now can't presently do."

During a speech in November, Attorney General Alberto Gonzales endorsed
the idea and said at the time that he would send Congress draft
legislation. Such changes are necessary because new technology is
"encouraging large-scale criminal enterprises to get involved in
intellectual-property theft," Gonzales said, adding that proceeds from
the illicit businesses are used, "quite frankly, to fund terrorism
activities."

The 24-page bill is a far-reaching medley of different proposals cobbled
together. One would, for instance, create a new federal crime of just
trying to commit copyright infringement. Such willful attempts at
piracy, even if they fail, could be punished by up to 10 years in prison.

It also represents a political setback for critics of expanding
copyright law, who have been backing federal legislation that veers in
the opposite direction and permits bypassing copy protection for "fair
use" purposes. That bill--introduced in 2002 by Rep. Rick Boucher, a
Virginia Democrat--has been bottled up in a subcommittee ever since.

*A DMCA dispute*
But one of the more controversial sections may be the changes to the
DMCA. Under current law, Section 1201 of the law generally prohibits
distributing or trafficking in any software or hardware that can be used
to bypass copy-protection devices. (That section already has been used
against a Princeton computer science professor, Russian programmer
Dmitry Sklyarov and a toner cartridge remanufacturer)

Smith's measure would expand those civil and criminal restrictions.
Instead of merely targeting distribution, the new language says nobody
may "make, import, export, obtain control of, or possess" such
anticircumvention tools if they may be redistributed to someone else.

"It's one degree more likely that mere communication about the means of
accomplishing a hack would be subject to penalties," said Peter Jaszi,
who teaches copyright law at American University and is critical of
attempts to expand it.

Even the current wording of the DMCA has alarmed security researchers.
Ed Felten, the Princeton professor, told the Copyright Office last month
that he and a colleague were the first to uncover the so-called
"rootkit" on some Sony BMG Music Entertainment CDs--but delayed
publishing their findings for fear of being sued under the DMCA. A
report prepared by critics of the DMCA says it quashes free speech and
chokes innovation.

The SIIA's Kupferschmid, though, downplayed concerns about the expansion
of the DMCA. "We really see this provision as far as any changes to the
DMCA go as merely a housekeeping provision, not really a substantive
change whatsoever," he said. "They're really to just make the definition
of trafficking consistent throughout the DMCA and other provisions
within copyright law uniform."

The SIIA's board of directors includes Symantec, Sun Microsystems,
Oracle, Intuit and Red Hat.

Jessica Litman, who teaches copyright law at Wayne State University,
views the DMCA expansion as more than just a minor change. "If Sony had
decided to stand on its rights and either McAfee or Norton Antivirus had
tried to remove the rootkit from my hard drive, we'd all be violating
this expanded definition," Litman said.

The proposed law scheduled to be introduced by Rep. Smith also does the
following:

=95 Permits wiretaps in investigations of copyright crimes, trade secret
theft and economic espionage. It would establish a new copyright unit
inside the FBI and budgets $20 million on topics including creating
"advanced tools of forensic science to investigate" copyright crimes.

=95 Amends existing law to permit criminal enforcement of copyright
violations even if the work was not registered with the U.S. Copyright
Office.

=95 Boosts criminal penalties for copyright infringement originally
created by the No Electronic Theft Act of 1997 from five years to 10
years (and 10 years to 20 years for subsequent offenses). The NET Act
targets noncommercial piracy including posting copyrighted photos,
videos or news articles on a Web site if the value exceeds $1,000.

=95 Creates civil asset forfeiture penalties for anything used in
copyright piracy. Computers or other equipment seized must be
"destroyed" or otherwise disposed of, for instance at a government
auction. Criminal asset forfeiture will be done following the rules
established by federal drug laws

=95 Says copyright holders can impound "records documenting the
manufacture, sale or receipt of items involved in" infringements.

Jason Schultz, a staff attorney at the digital-rights group the
Electronic Frontier Foundation, says the recording industry would be
delighted to have the right to impound records. In a piracy lawsuit,
"they want server logs," Schultz said. "They want to know every single
person who's ever downloaded (certain files)--their IP addresses,
everything."

/CNET News.com's Anne Broache contributed to this report.

--
Judit Rius Sanjuan
judit.rius at cptech.org
www.cptech.org

Consumer Project on Technology
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.: +1.202.332.2670, Ext 17 Fax: +1.202.332.2673