News

While the Recording Industry Association of America (RIAA) is working overtime to jail file traders, members of the US Congress are introducing bill after bill targeting with criminal prosecution the 60 million Americans engaged in Internet file sharing.

H.R. 2517, otherwise known as the "Piracy Deterrence and Education Act of 2003," was introduced last month by Representative Lamar Smith (R-TX) to enable the Federal Bureau of Investigation to deter all "unauthorized" home recording by consumers when obtained from the Internet.

The bill states that the director of the FBI shall "develop a program to deter members of the public from committing acts of copyright infringement by offering on the Internet copies of copyrighted works, or making copies of copyrighted works from the Internet . . . and facilitate the sharing among law enforcement agencies, Internet service providers, and copyright owners of information concerning [these] activities."

Not surprisingly, the RIAA's Cary Sherman was quick to praise the bill, stating, "The Smith-Berman legislation will strengthen the hand of the FBI and other federal law enforcement officials to address the rampant copyright infringement occurring on peer-to-peer networks." But both the Consumer Electronics Association (CEA) and Home Recording Rights Coalition (HRRC) are now on record as opposing the bill, which, they claim, "would cause a chilling effect on lawful home use practices."

The CEA's Gary Shapiro feels that the bill as written is troubling for consumers on multiple levels. "First, it suggests that any 'unauthorized' home recording is criminal conduct if the content is obtained from the Internet. In fact, the law clearly provides that certain unauthorized uses of content—also known as fair use—are protected, regardless of the content's source." In addition, Shapiro says the bill would involve the FBI in gathering data on the private home recording practices of individuals. "This provision appears to be contrary to the federal laws that prevent the collection of such private data without a subpoena."

In a written statement filed with a House judiciary subcommittee July 17, the HRRC expressed strong opposition to H.R. 2517: "It is tempting to chill, constrain, or even criminalize all ties and practices that are considered potentially threatening [to content providers]. But to do so would be just as short-sighted as it would have been to outlaw consumer tape recorders in 1984."

The HRRC says that the FBI should not be involved in collecting information on consumer practices or issuing "warnings" to consumers. "Federal law prohibits such data collection without a search warrant, and FBI 'warnings' to consumers about conduct that may be entirely legal seem unconstitutional."

The advocacy group also takes issue with the bill's provision for the Attorney General to be involved in copyright "education" campaigns "when he also has the responsibility of being an advocate in court. His law enforcement advocacy responsibilities are inconsistent with an obligation to provide balanced information as to consumer fair use rights."

The HRRC also suggests that the notion of giving discretion to the United States Attorney General to decide which content providers should receive the right to use official FBI markings, and which should not, ought to arouse the longstanding First Amendment concerns of the entertainment industry. "We find it hard to believe that the motion picture industry or the recording industry would be content with giving Attorney General Ashcroft, or any other Attorney General, the discretion to decide which copyrighted works may bear an official government seal and which may not," says the group.