Online

Gonzales Wants Increased Copyright Enforcement Power, Infringement Penalties

By: Sue Denim

Posted: 05/15/2007

WASHINGTON - U.S. Attorney General Alberto Gonzales is never too busy to trample the First Amendment, it seems.

Although currently embroiled in a congressional investigation after dismissing eight U.S. Attorneys late last year, Gonzales took time on Monday to urge Congress to pass tougher intellectual property laws—laws that, according to some First Amendment experts, run dangerously close to trampling the rights of average citizens.

"To meet the global challenges of IP crime, our criminal laws must be kept updated," Gonzales told the U.S. Chamber of Commerce on Monday.

He was speaking about a Bush administration proposal called the Intellectual Property Protection Act of 2007, which represents the most dramatic rewrite of copyright enforcement law since the Family Entertainment and Copyright Act of 2005 imposed heavy penalties for pre-release piracy. The new proposal is expected to receive enthusiastic support from the movie and recording industries.

Among the IPPA's provisions is one imposing criminal penalties for "attempting" to infringe copyright. According to a Justice Department summary of the law delivered Monday to Speaker of the House Nancy Pelosi [D-CA], "It is a general tenet of the criminal law that those who attempt to commit a crime but do not complete [the act] are as morally culpable as those who succeed in doing so."

The statement caused some concern for First Amendment attorney Lawrence G. Walters, who told AVNOnline.com, "It seems like we may be running into a First Amendment problem here. The Copyright Act strikes a careful balance between First Amendment freedoms and authors' rights. Crossing over into 'attempts' seems to move the marker too far into the realm of protected speech."

But crossing free-speech lines isn't the only way in which the proposed bill begins to seem like the work of some fictional bureaucrat in an autocratic future society. The bill also seeks to impose a sentence of life imprisonment on pirated software users who "recklessly cause or attempt to cause death." According to journalist Declan McCullagh, "During a conference call, Justice Department officials gave the example of a hospital using pirated software instead of paying for it."

The bill also seeks authorization for wiretaps of Americans who may be "attempting" to infringe copyrights, seizure of computers that may be "intended to be used in any manner" associated with a copyright crime, and increased penalties for Digital Millennium Copyright Act violations. In addition, it adds penalties for "intended" copyright crimes and requires the Department of Homeland Security to alert the Recording Industry Association of America when someone attempts to import CDs containing allegedly pirated recordings of live musical performances. Interestingly, no other professional organization (like the Motion Picture Association of America) nor any private copyright holder would qualify for similar special treatment.

The comparison is not a new one during the days of the Bush administration, but the whole thing resembles an odd comingling of Orwellian concepts embodied in the ominous novels 1984 and Animal Farm. Copyright infringement is a serious concern for adult entertainment producers, but even one of the staunchest supporters of legal action against pirates told AVNOnline.com he has severe misgivings about the IPPA.

"It never ceases to amaze me how Gonzales can take a perfectly good idea that, on its face, appears to benefit the public and then use it as yet another way to further his own agenda, which is to decimate the Constitution and the Bill of Rights," said Seattle-based First Amendment attorney Robert S. Apgood, who is representing Falcon Foto in several high-profile copyright-infringement lawsuits. "It's no secret that I champion the protection of intellectual property rights and condemn piracy, but I absolutely cannot and do not support what Gonzales is trying to do in expanding the already frightening scope of wiretaps and seizures.

"We must all look with suspicion on proposed legislation by the current executive that purports to protect the rights of those whose interests they have consistently opposed," Apgood added.

It is uncertain at this point what reception the Bush administration proposal championed by Gonzales may receive on Capitol Hill. Rep. Howard Berman [D-CA], who heads the House Judiciary subcommittee that deals with intellectual property, reportedly plans to introduce his own bill later this year but so far has been unwilling to reveal details. Rep. Lamar Smith [R-TX], the ranking Republican on the House Judiciary Committee, supported a similar bill last year, but it died in committee.