Bush Signs Law Targeting P2P Pirates

BlakeCaldwell writes "CNet is reporting that President Bush signed into law the Family Entertainment and Copyright Act (previously-reported). A lawbreaker can land in jail for up to three years for distributing a single copy of a prerelease movie on the Internet. The MPAA's president Dan Glickman applauded the move, stating he wanted to 'thank the congressional sponsors of this legislation for their strong advocacy for intellectual property rights.'"

Comments

Not that bad...

[mfh]

Before we hear people slamming this (because it's Bush related), read what the EFF has to say about it...

Straight from the EFF's Fred von Lohmann:

April 22, 2005

As many have reported, the Family Entertainment and Copyright Act of 2005 (S.167/H.R. 357), recently passed the House, which also issued a committee report about the bill. Since the identical language had already passed the Senate in February, the measure now goes to President Bush for signature.

There has been some alarmist reporting about the bill. While it's decidedly a mixed bag, I think the bill should be marked as more victory than a defeat for the public interest side in the copyfight.

...And the bottom line from the EFF:

The real silver lining here emerges when you consider where the entertainment industry started back in 2003, and where they've ended up in 2005. After two years of heavy investments in lobbying Congress for a host of outrageous changes to copyright laws (like the Induce Act), the entertainment moguls managed to enact only a tiny sliver of their agenda, and only by granting concessions to ClearPlay.

Re:Not that bad...

[garcia]

The real silver lining here emerges when you consider where the entertainment industry started back in 2003, and where they've ended up in 2005. After two years of heavy investments in lobbying Congress for a host of outrageous changes to copyright laws (like the Induce Act), the entertainment moguls managed to enact only a tiny sliver of their agenda, and only by granting concessions to ClearPlay.

And yet after 229 years of lobbying Congress the flesh and blood people of this fine country and losing their rights sliver by sliver to those "people" created out of paper and ink.

Re:Not that bad...

[Threni]

Give it a few months/years, and the bit about pre-release will vanish, leaving you with these over the top criminal sanctions for sharing any file, even those legal outside the States (such as Naxos licensed classical/world recordings), or deleted material.

Re:Not that bad...

[cpt kangarooski]

(3) DEFINITION- In this subsection, the term `work being prepared for commercial distribution' means--

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution--

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture--

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.'.

Thus, for a motion picture such as Battlestar Galactica, there is a reasonable expectation of commercial distribution, but it has not been commercially distributed. It has not been made available for viewing in a motion picture exhibition facility, however, since the definition for that term is: The term `motion picture exhibition facility' means a movie theater, screening room, or other venue that is being used primarily for the exhibition of a copyrighted motion picture, if such exhibition is open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.

So since only one or the other has to be satisfied, it is a work being prepared for commercial release. Willfully distributing it on a computer network (e.g. Bit Torrent) is a felony and can result in significant civil penalties.

Is it so hard to look at the text of the law in question?

Re:Not that bad...

[zuzulo]

I think what folks dont realize is that this kind of legislation just forces the issue for those of us who think seriously about cryptographically secure distributed networks.

There is now a demonstrable, real need for networks where *all* activities are double blind encrypted transactions through an arbitrary, configurable number of intermediaries who can *prove* they dont know who is sending them data or what data they are handling.

A network such as this clearly falls under the fair use statues as a way to maintain secure person to person communication and confidential file sharing (ala PGP et al), and if it is constructed in such a way that only request originators and suppliers *can* know what they are using the network for yet still cannot know *who* they are doing it with, it would more than satisfy legal concerns such as providing plausible deniability.

Therefore 'sharers' and 'users' can still be caught but only through fairly onerous chores like monitoring thier personal computers during use to see exactly what they are sharing or downloading. This is much more analogous to conventional law enforcement techniques for doing video surveillance and audio monitoring - an agent basically has to get a warrant *with probable cause* to initiate any of these activities, and it is not clear to me that data transactions deserve any less legal protection.

So, to end this somewhat rant like spiel, it is clear that this kind of legislation may be a net *good* for the community in that it forces us to develop a better peered infrastructure simply to maintain our fair use rights.

Heck, i might have to buckle down and give something back to the open source community and the internet community at large at long last myself. ;-)

Now if someone would just pay me and my crew our cost of living expenses for as long as it would take to build a network of this sort, or even better if a non profit foundation or relatively wealthy private benefactor would post a bounty ala the "XPrize" with well defined acceptance criteria for such a network (double blind, multiple stops, no scaling issues, configurable encryption levels, automated discovery, etc) I would be able to convince a serious crew to do this now (and we would even donate the resulting IP to the sponsoring org or the open source community - which now that i think about it would be a nice prize requirement) rather than working on other stuff to get paid and pursuing this sort of thing as a hobby.

Seriously interested parties feel free to contact me at zuz(del)ulo at g(del)mail (del). com. I have been thinking somewhat seriously about the algorithmic side of this for quite some time. On the whole, however, it is pretty clear to me that community forces will force the evolution of something with these characteristics, most likely within the next 24 months or so.

Re:Not that bad...

[jafac]

You know, I have watched hundreds of mevies wherein I *knew* a couple had sex, but it was not depicted explicity, yet this did not detract one bit from the movie's entertainment value.

Part of what an artist (in this case, the Director, Producer, Writer, Actors, Editor, etc.) tries to do with his or her medium, is to convey information. Some of the information is logic (story), some is emotional. (in fact, Aristotle said that it's best to make arguments using three elements together: logos, ethos, and pathos - logic, ethics, and emotion).

So while some people don't require more than a subtle implied sexual encounter, others are less sensitive, or maybe the artist wants to dial-up the emotional impact a notch or two for dramatic effect.

Who the FUCK are YOU, to say that an artist can not use his or her medium in this way?

You are a paying customer. So when material is too explicit for your tastes, simple; don't pay for that material. Don't watch. 'k?

Yes, it's true that there are hacks out there (probably 99% of the movie industry) who abuse this freedom, because, frankly, sex sells. Also, there's simply a style in moviemaking in our contemporary era, that calls for such intensity of explicitness, or pathos, (similar to the 19th century Fauvists painters use of intense color and crude shapes). Maybe a decade or two from now, that style may change, or not, depending on the tastes of the audience, and how strongly the market is controlled by government/religious regulation.

It could be said that the current "style" of moviemaking is driven by market demand. And that demand, is shaped, in part, by a social backlash to religious repression of sexuality, dating back to your cited "golden age" of classic cinema.

I posit that without such repression, people, in general, will see such explicitness, and eventually get sick of it, and the demand for that style will change, to something else.

I would like to see that happen. As a market response to a supply of material that's over-saturated in explicitness.

But the more folks like James Dobson, Michael Powell, and yourself, try to tell people what they can (or should) or can not (or should not) see, or create, the more people will want to see, or create those things.

I want to see good moviemaking, and more emphasis on subtlety, and logos and ethos, and less emphasis on pathos, as well.

But I'm voting with my dollars. I don't think that government or church should intervene in this market, other than to break industry dominance by the few players, both in production and distribution.

If the market is freed, demand will drive the next evolution in cinema. (and not, as Lucas and his ilk wants us to believe, technology - technology could make it possible to break the screwed up over-consolidated market, but it's not going to do anything to change demand-driven stylistic content - who here is sick of "good eye-candy, crappy story" movies? raise your hand. /raises hand, not alone).

Re:Not that bad...

[cpt kangarooski]

There is now a demonstrable, real need for networks where *all* activities are double blind encrypted transactions through an arbitrary, configurable number of intermediaries who can *prove* they dont know who is sending them data or what data they are handling.

Yes, but not for the reason you probably think.

Civilly, copyright is a strict liability statute. Thus, if you engage in infringing conduct, you have broken the law. It does not matter at all what your intent was. Even if you do not actually believe that you are engaging in prohibited conduct, and it is not even reasonable for you to believe that you are engaging in prohibited conduct, if you do it, you're an infringer.

Your mental state generally only has an affect on the damages you have to pay.

Criminally, willfulness is required, which is a fairly moderate standard. However, IMO unless you honestly have a credible, though erroneous belief in the non-infringing nature of your actions, you're likely to be considered to be a willful infringer. Most of the beliefs about what is and isn't infringement that I see around here probably fall on the non-credible side of the line. Additionally, some courts may simply decide that if the action was undertaken willfully, that is sufficient, even if there was no willful intent to infringe.

So your proposal doesn't help people to not commit crimes. If they take some infringing action even with regards to encrypted data they don't know the contents of, then they are probably still criminal infringers. After all, courts do not look favorably on the concept of willful blindness, which is basically what you propose.

What you're really doing is making it difficult to get caught at these crimes, which is a different proposition. It's sort of the difference between how one could avoid a murder conviction by either a) not murdering people, or b) making sure to not leave any evidence behind that points to oneself.

A network such as this clearly falls under the fair use statues as a way to maintain secure person to person communication and confidential file sharing (ala PGP et al), and if it is constructed in such a way that only request originators and suppliers *can* know what they are using the network for yet still cannot know *who* they are doing it with, it would more than satisfy legal concerns such as providing plausible deniability.

Like I said, plausible deniability is a really bad thing to rely on; courts simply do not like it, and if you make the attempt, you can probably rely on them to not be friendly should you need to rely on them to be voluntarily lenient.

Also, fair use is only in one statute, and it has nothing to do with what you propose. As for technology providers, they would be relying on the current formulation of contributory and vicarious liability (read the Sony and Napster cases for more on that, particularly Napster as a cautionary example) to avoid liability themselves.

However, the Supreme Court is at this moment reconsidering the Sony precedent, and there is a very real possibility that the creators or providers of a network as you envision could end up being liable for its use since despite it having many possible uses, it's also practically intended for an illegal one. It doesn't help that you just underlined that with your post here in a public forum, should it be you that faces future legal action. We'll know how this shakes out in the summer, when the Grokster opinion is issued.

In soviet russia...

[TrippTDF]

...they don't have this problem.

New name for law...

[Anonymous Coward]

They should call it the Federal Entertainment Copyright Act of Law (FECAL). That way, when the FBI goes to bust someone, they can have a press release where they say:

"We here at the FBI take FECAL matters very seriously, and Jimmy here is in way over his head."

Funny that they stress "Family Entertainment".

[Pantero Blanco]

No, Mr President, I don't think this has anything to do with the American family. Just say Movie Protection or something.

Re:Funny that they stress "Family Entertainment".

[drgonzo59]

That's what I said, what the fuck does the family have to do with the movie industry. Heck, the bill had to pass, it had the word "family" in, nobody wants to vote against family. The lawmakers are just as dumb and ridiculous as the people who elected them. How exactly is my family now more entertained than before? Why don't they add national security in there too, it would have passed much faster.

Or, maybe the bill is self-referencial and the whole process of trying to stop people from sharing or distributing by threats is entertaintment for the whole family.

How about I plant copies of a pre-release on somebody's computer the let the feds come and jail him for 3 years? Don't like your neighbour -put the latest peace of crap from Hollywood in the shares on his windows 98 machine and watch him burn. Can you imagine going to jail for distributing "Big Momma's House" - fun times!

the word sponsor just leaves a bad taste....

[VMaN]

....in my mouth..

I just can't understand how "buying" laws is considered perfectly natural and good legislation... (I know that's not exactly the context the word was used in, but still)

Re:the word sponsor just leaves a bad taste....

[doublem]

It's the REAL Golden Rule.

The one who has the Gold makes the Rules

irony

[Anonymous Coward]

irony: President Bush signing anything that involves the word "intellectual"

The story says it all

[Verteiron]

I was going to make some cynical, sarcastic comment on this but... damn, what's the point?

With everything going on today we're going to hunt down... filesharers? And sentence them like they've committed assault. Right.

The guiding hand of corporate bribes, excuse me, contributions, was never more obvious.

Nice knowing you guys

[sgtron]

Been nice knowing you guys.. wait.. we'll all meet up again in the big house and talk over the old times together.. it'll be fun!

American Law, got to love it

[cyberlotnet]

I know, sue americans, take all there money, put them in jail for years for doing things like hmm lets seee.. Oh yea stealing a few movies.

In the meantime lets let convicted murders get out on "good behavior" so they can get another shot and killing someone else.

Lets send rapests to see a shrink who can claim they are now safe for the world again.

Lets focus on every stupid little thing that happens EXCEPT the things that harm and affect us the most!!!

Cause gosh darn it I don't ever want to walk pass some "Axis of Evil" P2P criminal on the streets, the pure inhumanity of it all.

Re:Not just Americans

[ThunderBucket]

US law only applies to USians. If you were a US citizen in the UK, sure, you could get into trouble.

Extradition doesn't mean you enforce foreign law on your citizens, it means you agree to repatriate foreign countries' citizens if they're wanted by the courts.

Time Shift?

[maotx]

From S.167RH, Title I, Sec 103. which can be found under the Text of Legislation:

a. Criminal Infringement

1. IN GENERAL- Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed:

C. by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

So much for distribution of television shows online. Almost all of them will eventually release a DVD of the series (commercial distribution) therefore anyone posting last nights tv show as a torrent will be a criminal.

Re:Time Shift?

[stinerman]

I wonder if anyone will have the balls to have this challenged in the courts. As many TV shows are distributed via bittorrent, any downloader will make "it avaliable on a computer network accessible to members of the public". It seems to me that 3 years in prison for downloading/uploading a show that is shown for free is cruel and unusual.

It also reasons that if I run an FTP server and password protect it (jim:jim), then it isn't "accessible to members of the public".

lets get drunk and drive...

[Anonymous Coward]

If we're caught, we'll do less time than if we somehow managed to get a low quality copy of a movie from the theater. Heck, we can even lose control, slam into another vehicle, and kill an entire family on their way to visit grandma, at most we'll be slapped with a small fine and told how naughty we are.

Welcome to MegaCorp, where we make the rules, and frankly, human life is far less important than our profits.

Arrest the First Criminal

[Anonymous Coward]

Since mr. GW Bush is a known pirate, I suggest the DOJ investigate him first. Any other course of action would make a mockery of the supposed blindness of lady justice.

What A Cheap Shot

[Anonymous Coward]

from the another-victory-in-the-war-on-terror dept.

Seriously, Zonk, can you cite anybody in the Administration who has said that enforcement of IP laws is part of the War on Terror?

No, I didn't think so. So why the cheap shot connecting the two? It's funny how slashbots talk out of both sides of their mouths, that the technology shouldn't be procescuted, it should be the violators. Now the violators are being targeted, you guys still whine about...something.

Amazing

[mattmentecky]

Isnt just downright amazing how out of sync sentencing is for certain crimes?

Take for example Massachusetts Sentencing Guidlines. And compare it to this new federal law that was signed.
Larceny on a scale of $10,000-$50,000 can get an offender 36 months (in some cases, less!) than someone breaking copyright on a *single file*. This means that Person A can walk into a physical record store and almost wipe the store clean via theft, and get sentenced the same as Person B who shares one copyrighted song online.

That is just amazing to me.

Re:Not just Americans

[jobsagoodun]

f you break American law (e.g. this one) and live in any country (like the UK) which has an extradition treaty with the USA you can be brought to America and charged with the crime.

Absolute Bollocks.

Extradition laws apply only to laws which are punishable with jail sentences > 1 year in both countries. Generally this means serious offences like murder, abduction etc.

Now, once the UK starts banging people up for swapping movies you may have a point...

Re:Ridiculous

[thagoren]

"Some rapists don't even serve this much time." Gee, you mean that some criminals don't serve the maximum possible jail time for their crimes? Unless this law is the one exception in all of US law, movie pirates won't all be serving the maximum time either, so they can still expect to serve less time than rapists and murderers. Since you'll probably get just a few months, go ahead and steal as many movies as you want! After all, it's all in the name of "privacy" - which obviously no-one except criminals have a right to. By the so-called "logic" of most slashdotters, anyone involved in the movie industry certainly can expect no right to privacy - unless it's to protect their cocaine.

This is the beginning of a moral right

[CrosbieFitch]

Although this law probably takes no account of how lax security may be in terms of allow unwitting would-be publishers getting hold of a pre-release work, it is morally laudable.

I'm all for abolishing copyright as applied to published works, but unpublished works are the only true 'intellectual property'.

If it's unpublished, it remains property. Once published, it belongs to the people and enters the public domain.

The archaic 'copyright incentive' was only a sweetener that granted a publication monopoly for a limited time. It's time that ended (at least on the Internet).

So, yes, if the IP is unpublished and under lock and key, then anyone who steals it and publishes it is a criminal of the first order. Although, someone who privately distributes something under NDA to 50,000 conference delegates does not really deserve as much damages as a movie company who has distributed a DVD to 50 reviewers.

ebay?

[Tom]

How long until congress goes the final step and auctions off laws? It's obvious that many of the recent laws are simply bought, even if the politically correct term is "lobbyism". Why not go the whole nine yards? In the long run, it'll be the only way to save the exploding deficit anyways.

lets hunt

[Tsiangkun]

I'd suggest we start hunting down filesharing criminals related to senators, representatives, the president and his staff, lawyers, leaders of corporations, and members of the **AA.

might as well add the pastors children to the list too.

The only way I can see the stop laws like this is to send the ruling class's children to prison.

Re:Quote from Alpha Centauri

[Hubis]

As the Americans learned so painfully in Earth's final century, free flow of information is the only safeguard against tyranny. The once-chained people whose leaders at last lose their grip on information flow will soon burst with freedom and vitality, but the free nation gradually constricting its grip on public discourse has begun its rapid slide into despotism. Beware of he who would deny you access to information, for in his heart he dreams himself your master. Commissioner Pravin Lal "U.N. Declaration of Rights" (To be precise)