Senate OKs PIRATE Act By Barry Willis June 28, 2004 — The US Senate has gotten serious about going after file sharers. On Friday, June 25, senators approved legislation that would allow the Justice Department to impose heavy civil penalties on people found to have shared and/or downloaded copyrighted material over the Internet.

The PIRATE Act (Protecting Intellectual Rights Against Theft and Expropriation Act) passed on a unanimous voice vote, according to reports from Washington. If approved by both houses of Congress and signed into law by President Bush, the legislation would move the legal battle against file sharing from criminal to civil courts, allowing prosecutors to extract damages and restitution without the need to first prove criminal activity.

Most file sharers targeted by the music industry so far have been threatened with criminal court proceedings, but have not actually appeared before judge or jury. Potential fines in civil cases could go as high as "tens or hundreds of thousands of dollars," noted CNET's Declan McCullagh.

Litigants in civil courts generally face a much lower standard of proof than they do in criminal courts—a fact cited by Senate Judiciary Chairman Orrin Hatch (R-UT). An amateur songwriter, Hatch told reporters earlier this year that "the difficulty of proving criminal cases has kept the Justice Department from prosecuting people who download and share files using peer-to-peer file-sharing software," according to the Associated Press. Incorporating the PIRATE Act into federal law would eliminate that barrier, possibly exposing many thousands of music lovers to deep financial losses.

Since the beginning of this year, the Recording Industry Association of America (RIAA) has launched criminal charges against 3429 people, all of them allegedly egregious file sharers. New defendants are issued subpoenas at the rate of 400 to 500 per month. To date, all - or almost all, except for one unfortunate 12-year-old New York girl, whose fine was paid by supporters - have settled out of court rather than go to the mat with the RIAA. The costs of fighting criminal charges are entirely too prohibitive and the odds of winning, vanishingly small.

Opening the nation's civil courts to file-sharing cases might be the next necessary step in battling piracy, Hatch stated. "Tens of thousands of continuing civil enforcement actions might be needed to generate the necessary deterrence," he explained. "I doubt that any nongovernmental organization has the resources or moral authority to pursue such a campaign." Critics of the legislation denounced the PIRATE Act as a means of turning the Justice Department "into a private law firm" for the entertainment industry.

The RIAA applauded the Senate's action. "These acts will provide federal prosecutors with the flexibility and discretion to bring copyright infringement cases that best correspond to the nature of the crime," said RIAA chairman Mitch Bainwol. They "will assure that valuable works that are pirated before their public release date are protected," he emphasized.

The PIRATE Act was co-sponsored by Senator Patrick Leahy, the top-ranking Democrat on the Senate Judiciary Committee. Leahy had previously described the bill as one that would "allow the government to bring its resources to bear on this immense problem, and to ensure that more creative works are made available online, that these works are more affordable and the people who work to bring them to us are paid for their efforts." The legislation has been sent to the House of Representatives for consideration.