Has Congress Backdoored In 'Attempted Copyright Infringement' As A Crime?

from the uh-oh... dept

Wed, Mar 26th 2008 10:09am — Mike Masnick

Last year, when Alberto Gonzales was under pressure from Congress, he suddenly started spending a lot of time talking about stricter copyright laws. Perhaps it gave him a distraction from repeating "I do not recall" all day in front of Congress. His proposal was basically a laundry list of the entertainment industry's desired changes to copyright law, including making "attempted infringement" a crime. Despite the fact that copyright law is pretty clear that an actual violation needs to happen first, this would shift the standard so that if you just attempted to infringe, you could be found guilty of the full infringement itself. While Gonzales' efforts went nowhere, William Patry is pointing out that Congress may have backdoored in this "attempted" clause late last year through the Orwellianly-titled Criminal Code Modernization and Simplification Act. In that act, it notes that: "Unless otherwise provided by law, whoever attempts to commit an offense shall be punished as is provided for the completed offense." When it comes to copyright law in the bill, no exception is provided. Patry points to the recent story of the guy sent to jail for just clicking a link to give you a suggestion of where this new law will allow complaints to go. It's not a pretty picture.

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Filed Under: attempted infringement, congress, copyright infringement

33 Comments

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Jesse, 26 Mar 2008 @ 10:24am

Reporting 101
Wow, You would never be able to tell your philosophy is left of center...Subtle, very subtle.
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Brooks, 26 Mar 2008 @ 10:34am

This is a little bigger than copyright, yes?
By my read, this means we now have everything from attempted jaywalking to attempted speeding (if, for instance, your speedometer is wrong and you think you're doing 70 in a 65 zone when you're actually doing 65).

And since "attempt" gets at intent, this could be a real mess. The US criminal justice system just got a whole lot weirder.
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Anonymous Coward, 26 Mar 2008 @ 10:55am

I think your reading more into this act then is actually there. If you read the section on criminal infringement of a copyright they are very specific. You should also note the evidence clause (2)..."evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish knowing infringement of a copyright."

`(a) Criminal Infringement-

`(1) In general- Any person who knowingly infringes a copyright shall be punished as provided under section 676, if the infringement was committed--

`(A) for purposes of commercial advantage or private financial gain;

`(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

`(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

`(2) Evidence- For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish knowing infringement of a copyright.

`(3) Definition- In this subsection, the term `work being prepared for commercial distribution' means--

`(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution--

`(i) the copyright owner has a reasonable expectation of commercial distribution; and

`(ii) the copies or phonorecords of the work have not been commercially distributed; or

`(B) a motion picture, if, at the time of unauthorized distribution, the motion picture--

`(i) has been made available for viewing in a motion picture exhibition facility; and

`(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.
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WarOtter (profile), 26 Mar 2008 @ 10:57am

Do everyone a favor-
Make America beautiful again! Get a gun and shoot a lawyer today!
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Griffon, 26 Mar 2008 @ 10:57am

pray for a over turn
I just pray that some constitutional or civil liberty lawyer finds some grounds to challenge and over turn this before it gets used. This flat out insane. I can understand laws regarding attempt when life and limb is in play (attempted murder, which many states don't have) or pursuing related acts like conspiracy before a crime goes down... but a blanket law allowing any 'attempt' which means any perceived attempt through circumstantial evidence since no actual act has occurred is quite simple insane.
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BTR1701, 26 Mar 2008 @ 11:03am

Re: pray for a over turn
> I can understand laws regarding attempt when
> life and limb is in play (attempted murder,
> which many states don't have)

Actually, all 50 states have "attempted murder" as an offense in their respective penal codes.
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Le Blue Dude, 26 Mar 2008 @ 11:07am

Bloody fucking hell
Even conservatives should be up in arms about that. Really, they should. Basically, it means that you can be persecuted for even thinking about comitting a crime... after all, if attempting a crime is a crime, then attempting to attempt a crime is a crime.... It's like the barber's dilemma.
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Ferin, 26 Mar 2008 @ 11:12am

Thoughtcrime?
I wonder how low the bar will be for evidence of 'intent'? Pray gods this laws get overturned, or we're all in for it. Sad goddamned day for us all.
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Douglas Gresham, 26 Mar 2008 @ 11:13am

Re: Reporting 101
I worry about a world where critiquing a law that's a step away from thought crime brands you a leftie. I mean what exactly does "attempt" mean in this context? Do you have to prove malicious intent, is incompetence sufficient, or do we punish people who engage in legal activities that could be associated with criminal acts? Would asking an undercover cop to buy some drugs be covered by this, for instance? How about owning a firearm?

But hey, for questioning the establishment you're a commie, despite the fact it's a case of individual rights taking precedent over those of the state. Muppet.
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CVPunk, 26 Mar 2008 @ 11:18am

nice
it's like 24 years late but we finally have Thought Crime.
Sweet.
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Mike (profile), 26 Mar 2008 @ 11:25am

Re: Reporting 101
Wow, You would never be able to tell your philosophy is left of center...Subtle, very subtle.

Er... what about that post makes me left of center?

I'm always fascinated by this. Half the time people call me right wing. Half the time people call me left wing. CNN last year had a column where they called me right wing. And here you are accusing me of being left wing. I'm confused.

The truth is I'm neither. I don't care for either political party or their "platforms". I like to think for myself.
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Mike (profile), 26 Mar 2008 @ 11:26am

Re: Reporting 101
Also, on the topic of "reporting 101," this is not a journalistic endeavor. I am not, never have been and never claimed to be a reporter.

This is an OPINION and ANALYSIS site. Always has been.
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Mike (profile), 26 Mar 2008 @ 11:29am

Re:
I think your reading more into this act then is actually there. If you read the section on criminal infringement of a copyright they are very specific. You should also note the evidence clause (2)..."evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish knowing infringement of a copyright."

Those are two separate things. They're saying that having an infringing file isn't evidence of infringement, but also saying that attempted infringement is a crime. Those are separate. It means having an infringeing file may not be infringement, but NOT having a file could be if they think you intended to infringe.

Thus, it's all about intent, and that's where the "thought crime" question comes up.
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Oliver Wendell Jones, 26 Mar 2008 @ 11:31am

Anyone know a copy in this guy's district?
It would be great to have the police carefully watch this gentleman and his family and arrest them every time they leave a store with blank CDs, blank DVDs, blank VHS tapes, an iPod, etc. and charge them them with conspiracy to attempt copyright infringement and then multiply it by the number of items they bought - "oh, you bought a 50 pack of blank CDs? Then you must obviously be planning to infringe on the copyright of 50 albums, so that's 50 counts of conspiracy to attempt to infringe..."
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Overcast, 26 Mar 2008 @ 11:31am

What isn't a crime anymore?
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Relonar, 26 Mar 2008 @ 11:50am

thoughts on intent
so...if i'm studying to become a chemical engineer and i read a side script in one of my text books related to accelerating the rate of a exothermic solid to gas reaction, and then browse some websites and journals on the matter, I should have the calling card of my favorite defense attorney on hand?
whew even in writing this comment i should cc to him to make sure its context are cover under priveledge...

less laws sometimes make you safer
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Anonymous Coward, 26 Mar 2008 @ 12:01pm

REVOLUTION!
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Anonymous Coward, 26 Mar 2008 @ 12:17pm

Re: Crminal Infringement
"ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility."

Does this mean that every time I purchase a DVD or other copy written products from an overseas store, I'm breaking the law simply because it has not been released in the US?
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Beefcake, 26 Mar 2008 @ 12:22pm

Because we can do so much better than 1%
What no one seems to understand is, right now only 1% of the U.S. population is incarcerated. Without laws like these, we'll never improve that number.

In fact, perhaps we should make a three-year prison term compulsory-- that would do wonders to get those numbers up. As an added benefit, we can be sure people face punishment for crimes they commit that go unreported or not prosecuted.
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Nismoto, 26 Mar 2008 @ 12:33pm

Have guns...
will revolt.
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Nismoto, 26 Mar 2008 @ 12:38pm

Re: Because we can do so much better than 1%
We've been doing this for years now:
1. Invest in (or own) companies that build prisons.
2. Privatize the prison system (because a private company can do it much better $$$).
3. Pass stricter prison sentences (3 strikes).
4. Make more things crimes that weren't crimes before.
5. Sit back and count yo' money!
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sonofdot, 26 Mar 2008 @ 12:42pm

Re: Reporting 101
Spoken like a true right-wing neo-con. Anything the government thinks you should do is good, and if you disagree with it you must be a left-wing, unpatriotic, anti-American communist. I'll bet you think Dick Cheney and Karl Rove are patriots, too.
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Paul, 26 Mar 2008 @ 12:44pm

If you dont have enough criminals...
If you dont have enough criminals then make more things illegial, everyone says you cant arrest everyone who does such and such. Well Look at the war on drugs, how many people are in jail for pot?

Google says 755,186 were arrested for pot in 2003, out of a current us population of 303,714,763 or about .25%.

Thats a lot of made up criminals right there, and now you want to charge people for crimes that havent happend?

Thats it, im moving to canada...
or geting a job in law enforcement
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Chronno S. Trigger, 26 Mar 2008 @ 12:50pm

hang on a sec.
If this law sets attempted acts as punishable as the actual thing than what about attempted treason? Will AC and Nismoto be contacted by the FBI for attempting to incite a revolt? Am I going to be questioned for attempting to subvert the government by questioning this questionable law?

And how can this law be called "Criminal Code Modernization and Simplification Act" if it adds laws? Wouldn't we have to remove a few (or many) to modernize and simplify the criminal code?
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sayitagain, 26 Mar 2008 @ 12:56pm

Re: Do everyone a favor-
Preach on
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sonofdot, 26 Mar 2008 @ 1:09pm

Re: hang on a sec.
Remember this is Congress, the opposite of progress, so it only makes sense that the title of a bill would be the exact opposite of what the bill actually is (see: Patriot Act, Digital Millenium Copyright Act, et al). They wouldn't have been able to sneak it through if they had named it the Criminal Code Extension and Draconization Act.
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Anonymous Coward, 26 Mar 2008 @ 2:14pm

You know this has been part of the common law for a long time, and has been in the model penal code for ages? Attempted crimes are nothing new, this isn't creating thought crimes. Basically, its used (and judges limit to this) when the criminal screws up the crime. They tried, and failed. Sometimes the courts will let if go a bit earlier, temporally, so that the police can step in and stop a crime that's about to happen, but its a high burden to carry. People getting worked up over nothing.
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Anonymous Coward, 26 Mar 2008 @ 3:25pm

Re:
No, people are getting worked up over something. It's necessary to get worked up about these things, otherwise the government will modify their usual baby steps policy changes that normally takes years to remove our freedoms, and turn them into "don't get worked up over nothing" larger changes.

If the wording of a law or statute or bill makes citizens visibly uncomfortable, it should be the responsibility of lawmakers to take notice of that and either reassure the citizens or change that piece of writing. If lawmakers don't do that (as most don't) then it is absolutely the responsibility of the citizens to do something about it.

Those people in power will do just about anything to stay there, and many of the largest industries in the world make promises to those 'leaders' to keep them there if they can keep the industry leaders rich. It is a "I scratch your back, you scratch mine" relationship and everyone knows it, but very few people are willing to intervene and say that type of practice is not right and will not be tolerated.

To the guy who said he wants to move to Canada, it is definitely more free of a country for the citizens, for now, but follow some of the Canadian headlines too, as it seems there are some freedoms slowly being taken away from them also which are consequently being pushed by the same industries which have pushed the same changes in America or their Canadian counterparts.
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Azmo, 26 Mar 2008 @ 5:59pm

Natural reaction to an age where so much information is at everyone's fingertips.

Back in the dark ages, the Catholic church used Latin (which was, by and large, not spoken by most of their "flock") to tell the peasants.. pretty much anything they wanted. Corruption was rampant.

Fast forward to the printing press. The papacy wanted initially to force anyone wanting a press to apply for a papal license.

Book burning, censorship etc are all more extreme ways of limiting free thought, self expression and resistance to a government who are supposed to represent us, not rule us.

Thought crime is the next logical step. They can't control the information anymore so they use you having it as proof of intent. Then they lock you up for intending to commit a crime.

Guess I better work out where all the local parks are in case walking buy one infers I intend to kidnap and rape someone. Uh oh, finding out where all the parks are could indicate I want to do that. MUST STOP THINKING!!!
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Brian, 26 Mar 2008 @ 7:02pm

Re: Re: Reporting 101
Well that's it--- you have clearly stated that you are dangerous, no, you free-thinking troublemaker.
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Bob Friendly, 27 Mar 2008 @ 7:21am

this is not law!
Just a reminder that this Act is not law. This bill was introduced in December (by James Sensenbrenner from Wisconsin's 5 district) and has been sitting in committee since then. The bill has no co-sponsors. Without cosponsors, it's not going anywhere. Nothing to see here. Move along, folks.
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bshock, 27 Mar 2008 @ 8:47am

It will get worse
Corporate entities already consider us cattle, to herd and milk and slaughter as they see fit. This is just part of the herding.
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Anonymous Coward, 29 Mar 2008 @ 2:36pm

I see the sense.
"Unless otherwise provided by law, whoever attempts to commit an offense shall be punished as is provided for the completed offense."

I see the sense in this. For example, obtaining a handgun license is obviously the first step in one way of attempting to murder someone. Good thing we have that list, now all we have to do is go round them up.
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