http://www.extremetech.com/article2/0,1558,1788120,00.asp?kc=ETRSS02129TX1K0000532
April 20, 2005
Prerelease Pirates Could Receive Jail Time
By Mark Hachman
A new bill that would imprison pre-release file pirates for up to three years is just a few procedural steps away from becoming law.
The bill, known as the Family Entertainment and Copyright Act of 2005, which includes the Artists' Rights and Theft Prevention Act of 2005 or the ART Act, was crafted to sentence distributors of prerelease copies of films, songs or other works for up to three years. The bill also would permit companies like ClearPlay to edit films for language and content.
The bill, which is awaiting signature from President Bush, would assign the same penalties to users who trade prerelease works as others who violate copyright law. Under Section 506(a) of Title 17 of the U.S. Code, individuals who "during any 180-day period, [trade] 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000" may be imprisoned for up to three years, or six years for a second offense.
Specifically, FECA is designed to go after users who "camcord" a movie in a movie theatre, bringing in a digital movie camera, recording the film, and distributing the movie to others via physical DVDs and peer-to-peer networks. In addition, the bill would prevent an employee at a music studio or other pirate from releasing the track to the Internet before the song's release.
The bill would also grant theatre owners the right to hold a patron suspected of infringement until the police arrive. "[The owner] may detain, in a reasonable manner and for a reasonable time, any person suspected of a violation of this section with respect to that motion picture or audiovisual work for the purpose of questioning or summoning a law enforcement officer," the bill says. The theatre owner would be granted immunity from civil or criminal action arising from the detention.
Although the bill is expected to be signed into law, FECA was both welcomed and criticized by anti-piracy advocates. In comments attached to the House commentary on the bill, Rep. Howard Berman, a Democrat from California, called the bill a "disappointment," noting that it did little to address the issue of piracy in peer-to-peer file trading. However, he noted that the bill would address the goal of removing the file trader's "gold" of prerelease movies, which allow pirates to view a movie at the same time it is showing in the theatres.
"I am disappointed that with this bill we seem to have moved backwards, but I have been convinced that at this point, a bird in hand is better then two in the bush," Berman said.
The bill would also advance the process at the U.S. Register of Copyrights to establish the copyright earlier in the work's process. Today, the copyright is usually established only after the work is distributed, technically allowing the prerelease work to be legally distributed via the file-sharing networks.
Under the terms of the bill, the only exemption to the penalties described in the bill is if a copyright holder fails to notify the U.S. Copyright Office of the copyright within three months of first publication of the work. A second exemption also prevents prosecution if a copyright holder notifies the office more than one month after the infringement is noted.
But the latter exemption, according to John Conyers (D-MI), actually represents an enormous loophole for a copyright holder to prosecute possibly years later, provided it notices the infringement and promptly inform the U.S. Copyright Office. A user sharing a "prerelease" version of a film or audio track released ten years ago could be prosecuted. Complications would arise in assigning a value to the work; a "prerelease" track of a U2 song released in 1989, for example, would justify a prison sentence. However, that same track could be purchased from a music service for 99 cents or less.
"Because it imposes the limit only for infringements that occur no more than two months after pre-registered content is first distributed, it is clear that the bill does not impose any time limit on filing lawsuits for infringements that occur more than two months after distribution," Conyers said.
Finally, the bill would also allow a film to be modified by a device or service to modify its content, for example in the case of sexual, violent or other objectionable content. Provided that the user be notified through a "clear and conspicuous notice" that the film had been so modified, the device or service manufacturer would be exempted from copyright infringement. The bill does not specifically make mention of what types of content could be "made transparent," in the language of the bill, and said it would be up to the courts to decide how much of the content could be removed without harming the artistic integrity of the film. FECA also does not address devices that would allow ads to be skipped or removed.
However, FECA would prevent a service from distributing a "fixed" version of a film with modified content, such as films distributed by Clean Flicks.
Six members, including Berman and Conyers, objected to that provision of the bill, noting that the U.S. Copyright Registrar had testified to Congress, noting that the right to edit a film to remove objectionable content intrinsically creates a fixed version of the film.
Editor's Note: An earlier version this story misidentified Rep. Berman as a Republican. He is a member of the Democratic Party.