Oct. 17, 2004 – This week the US Supreme Court refused to hear an appeal from the music industry over alleged copyright infringement, effectively affirming a lower court’s decision that internet providers are not required by law to provide information about people suspected of copyright infringement.
The same day, Attorney General John Ashcroft announced plans for a major government offensive to crack down on music downloaders, movie bootleggers and brand counterfeiters. Ashcroft also threw his weight behind several proposed laws currently making their way through Congress that information rights organizations say will stifle technological innovation, violate internet privacy and unnecessarily criminalize sharing copyrighted files on the web.
Advocates for electronic and privacy rights hailed Tuesday’s Supreme Court decision, saying the Court rightly protected internet users’ rights to privacy and free speech. The case pitted the Recording Industry Association of America (RIAA), the music industry’s trade group, against the telecom giant Verizon, which provides internet services. RIAA had attempted to force Verizon to turn over information about one of its subscribers suspected of illegally using KaZaA, peer-to-peer software that allows the sharing of digital music and other files among internet users.
The DC Circuit Court had previously ruled that under existing law, RIAA had no legal standing to discover the identity of the Verizon subscriber because the alleged evidence of copyright violation was on the subscriber’s individual computer, not on Verizon’s servers. The Supreme Court’s decision not to consider RIAA’s appeal validates the Circuit Court’s ruling.
Though the recording industry lost in the courts, Tuesday was not all bad news for them. With the release of a new report from the Justice Department’s Intellectual Property Task Force, Attorney General John Ashcroft vowed to throw the Department’s weight behind efforts to crack down on copyright infringement worldwide.
"The Justice Department has made the enforcement of intellectual property laws a high priority in recent years," said Ashcroft. "But there is much more that must be done. We are building on our recent successes. We are confronting intellectual property crime with the urgency and focus such a serious threat requires."
Citing economic and health concerns, as well as the "risk" that "the immense profit margins from intellectual property crimes" will become "a potential source for terrorist financing," Ashcroft announced plans to increase the number of officials assigned to investigate and prosecute intellectual property theft throughout the US and in some key regions of the world. He also stressed the need to strengthen existing international treaties to help "bring IP criminals overseas to face American justice."
The Task Force report released by the Justice Department cites several examples of instances in which counterfeit drugs or electronics, falsely branded with the mark of a trusted company, presented threats to public health and safety. It gives examples such as batteries filled with unsafe levels of mercury, medical textbooks containing erroneous information, car parts such as brakes manufactured with inferior or dangerous materials, and drugs meant to treat serious diseases made from unsafe or ineffectual substances.
The report also notes economic "damage" to companies resulting from intellectual property theft. The Justice Department’s report cites a separate document produced by the Office of the United States Trade Representative, which places the "losses" sustained by American companies at $200-250 billion. Additionally, the Justice Department notes, these illegal activities cost "hundreds of millions of dollars" in foregone tax revenues, wages, capital investments and jobs.
But neither agency cites any actual research to back up the figures, and it is unclear if the estimates are based on projected sales at legal retail markup, on the black market prices actually paid for the counterfeited goods, or on some other criteria.
"Finally," reads the Justice Department Task Force’s report, "while the harmful consequences of intellectual property theft may seem frightening, it is also disturbing to learn who is benefiting from many of these crimes. Intellectual property theft has been linked to organized crime and, potentially, may fund terrorist organizations attracted by the profitability of these offenses."
In spite of this dire warning, the report gives no evidence whatsoever that terrorist organizations are profiting from intellectual property theft.
Among the Task Force’s recommendations are suggestions that the federal government more aggressively enforce existing laws and help companies file suits against those who infringe on "intellectual property rights" as well as suggesting that Congress pass stricter protection laws that go beyond existing statues.
These proposed new laws are what have information and privacy rights organizations riled. For instance, the Task Force’s report recommends passage of the Inducing Infringement of Copyright Act of 2004, known commonly as the "Induce Act," which would allow copyright holders to sue companies or individuals that "induce" intellectual property theft.
A public interest organization called Public Knowledge, which promotes fortifying common access to information, expressed concern that the Induce Act would undermine technological innovation as well as lead to suits against people or companies that did not intend to cause copyright infringement.
By making it unlawful to "intentionally aid, abet, induce, or procure" copyright infringement, and by weakening the definition of "intent," Public Knowledge says that the vague language of the Induce Act could potentially cast an excessively wide net.
"Public Knowledge is concerned that the bill [goes] overbroad, because it regards almost any action that leads to infringement to be a potential offense even if the person who engages in the act never intended to cause infringement," Gigi B. Sohn, president of Public Knowledge, said a press statement by the group.
The group said the bill could discourage or outlaw future technologies like VCRs, digital video recorders, handheld digital music devices, and CD burners, all of which have uses completely unrelated to copyright infringement but which could be used to engage in intellectual property theft.
"No one will invest in or invent new innovative technologies if the mere fact that they can be used unlawfully is enough to make both the investors and the inventors liable," said Mike Godwin, legal director at Public Knowledge.
Another bill recommended for passage by the Task Force is the Piracy Deterrence and Education Act, which would render criminal the offering of more that 1,000 copyrighted works in an electronic format for others to duplicate. That legislation also calls on the FBI to "facilitate the sharing among law enforcement agencies, Internet service providers, and copyright owners of information concerning acts of copyright infringement."
Public Knowledge believes that the vagueness of the language stipulating FBI "cooperation" with internet service providers may constitute an "end run" around the courts’ decision that service providers do not have to cooperate with investigations into intellectual property theft when the evidence is not on their servers.
"You're turning tens of millions of people into criminals for doing nothing more than downloading or uploading a single song," Jason Shultz of the Election Frontier Foundation, a donor-sponsored membership organization advocating civil rights in the digital age, told Wired magazine. "We're talking about kids listening to music or watching movies."
