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House Panel Moves to Criminalize Spyware, Net Piracy

By David McGuire
washingtonpost.com Staff Writer
Wednesday, September 8, 2004; 5:19 PM

People who illegally share copyrighted music and movies over the Internet could be jailed for up to five years under a bill approved by a powerful congressional panel today.

The Piracy Deterrence and Education Act of 2004 is one of a handful of measures gathering steam in Congress that target the practice of Internet file sharing, which record companies blame for playing a part in a $2 billion dollar decline in yearly CD sales since 2000. The House Judiciary Committee approved the measure by voice vote, clearing it for debate in the full House.

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"This piracy harms everyone from those looking for legitimate uses of content to those who create it," said Rep. Lamar Smith (R-Texas), one of the bill's authors, ahead of today's vote. "We must not let new Internet technology become a haven for criminals."

The vote came toward the end of a busy session for the committee, which earlier in the day approved a measure making it a crime to surreptitiously place Internet "spyware" on people's computers.

Spyware is a broad term used to describe technology that tracks users' movements online. It can range from relatively innocuous "ad-ware" which peppers consumers with pop-up advertisements, to more insidious programs that record everything users type, including passwords and other sensitive personal data.

Congress has done little thus far to address Internet file-swapping, but that could change in the next few months as lawmakers in both houses consider a clutch of measures that target either individual downloaders or the companies -- like Kazaa and eDonkey -- that distribute the file-swapping software.

Although music and movie piracy is already a crime, existing law makes it difficult for the Justice Department to prosecute Internet file-swappers, since they don't charge money for the pirated works they distribute online. "There have been no prosecutions against egregious uploaders on public peer-to-peer networks," said Rep. Howard Berman (D-Calif.), who co-sponsored the measure.

Music industry officials have maintained that criminal prosecutions will carry more weight with would-be downloaders than the civil lawsuits the recording industry began filing against song swappers in September 2003. Representatives of the Recording Industry Association of America were not available for comment on today's vote.

Adam Eisgrau, the executive director of P2Punited, a lobbying group that represents file-sharing companies, said the bill wouldn't solve the file-sharing problem any more than would the recording industry's lawsuit campaign. "Ever-increasing penalties on individual users for copyright infringement are popular beyond logic. They are certainly within Congress's right to adopt, but that doesn't make them the right strategy for dealing with current tensions between new technologies and important intellectual property rights."

Eisgrau's group has unsuccessfully pressured record companies to come to the bargaining table with file-sharing companies to create some sort of legal licensing scheme for music distributed over peer-to-peer networks.

The Smith measure makes it a crime to make 1,000 or more copyrighted works (movies, songs, software, etc.) available for download. Most file-sharing software is set so that users automatically share their entire collections of downloaded music, unless they turn that function off.

The average college student has 1,100 illegally copied music files on his or her computer, according to a survey of more than 1,000 students published earlier this year by Ruckus Network, a Boston-based company that sells a legal download service to universities.

The bill also makes it illegal to use camcorders to record first-run movies in theaters, a practice commonly used by bootleggers looking to distribute the latest Hollywood hits. Smith angered Berman by amending the bill to also include a measure aimed at protecting the company ClearPlay from infringement prosecution.

ClearPlay makes a DVD player that allows parents to edit violent and sexual references out of movies like "Se7en," "Purple Rain" and "Laws of Attraction."

Under the legislation, file-swappers could be jailed for three years for file sharing or five years if they do it for private financial gain. Second offenders could be jailed for twice that long.

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