A Terrible Bill

This needs to be stopped:

“H.R. 4279, Prioritizing Resources and Organization for Intellectual Property Act of 2008, is gaining momentum in Congress. It passed the House a few days back. It would allow the Feds to seize hardware that has even one file coming from ‘dubious origins,’ e.g. downloaded from P2P. If passed into law, the bill would establish an Intellectual Property Enforcement Division within the office of the Deputy Attorney General. Rep. John Conyers says the goal is to ‘prioritize intellectual property protection to the highest level of our government.'”

In detail, what does this bill do? This:

This legislation gives the government the power to seize property that facilitates the violation of intellectual property laws. The legislation also mandates the formation of a formal Intellectual Property Enforcement Division within the office of the Deputy Attorney General to enforce this madness. In addition, a new office called the Office of the United States Intellectual Property Enforcement Representative is created within the Executive Office of the President. If you boil it down to brass tax [sic], this legislation allows the U.S. government to lawfully seize your computer if it has one unauthorized mp3 file on its hard drive. It also provides the authorization for the creation of offices within the executive branch to enforce a law that is impossible to enforce.

This is not what the country needs. Hell, if this passes, I would not be surprised to hear law enforcement seizing computers to use in criminal investigations because a copyrighted picture was found in your browser cache from simple surfing. This is a terrible, terrible bill. This bill will redefine the concept of prosecutorial fishing expeditions and asset seizure.

*** Update ***

A summary of the bill, and the full text. The roll call vote is here, and it was passed 410-11 with 12 no votes.

Related.

*** Update #2 ***

Commenters say I am freaking out over nothing:

Go read the text of the amendments before you fly off the handle; really, they’re shorter than the average BJuice comments thread. The modifications of the bill in question have to do with the distribution of physical copies—phonorecords, counterfeit films, and other counterfeit physical items. The intent of Congress here has nothing to do with P2P and everything to do with factories producing knock-offs. It certainly has nothing to do with innocent infringement.






62 replies
  1. 1
    4tehlulz says:

    INTERNET DIES

  2. 2
    Grumpy Code Monkey says:

    Haven’t yet read the text of the bill, but several questions:

    1. How the hell would law enforcement know (or at least suspect) you have copyrighted materials on your computer? ISP logs? P2P network stings?

    2. IANAL, but how does this square with the 4th amendment provision against unreasonable search or seizure? As John hints, what’s to stop law enforcement from fishing for other incriminating evidence separate from the “dubious” files?

    IP protection is a real issue, but Jesus, this is over the fucking top.

  3. 3
    Grand Moff Texan says:

    Uh, considering how many files are stored somewhere in my computer without my knowing where they are or how they got there, this is starting to sound like one of those “why we have a 2nd amendment” moments.

    Which reminds me, I need to buy shells.
    .

  4. 4
    Z says:

    I wrote my senator. All of you should do the same.

  5. 5
    Singularity says:

    I’m about fucking tired of the Entertainment Industry Preservation Society we call a Congress. And the Democrats are worse than the Republicans. Having worked in the entertainment industry for 12 years, I can tell you that IP theft is a problem, but nowhere near the problem that the executives pretend it is. The music industry has been slightly more impacted than film and television, but that is because their business model was the most outdated. And the artists are not being ripped off any more than they were under the record label system. They are just being ripped off by the multitudes rather than by a few very rich assholes.

    John Conyers is a decent guy, but he needs to get his hand out of the entertainment industry cookie jar. This shit is unacceptable.

  6. 6
    Octavian says:

    This is unacceptable.

  7. 7

    “If you boil it down to brass tax…”

    For all intensive purposes, it’s brass tacks.

  8. 8
    John Cole says:

    “If you boil it down to brass tax…”

    For all intensive purposes, it’s brass tacks.

    Yeah, I caught that, too. I notice them when I don’t write them myself.

  9. 9
    Zifnab says:

    This doesn’t even look like an Entertainment Industry Bill. It looks like a “War On Your Neighbor” bill, ginned up with the blessings of the RIAA, that will give cover to all the previous forms of illegal wiretapping and packet sniffing bullshit that’s already been floating around.

    Impossible to enforce doesn’t even begin to describe this bill. I can see this getting rolled into the War on Drugs, Terror, and Porn so easily it hurts me. “We found an illegally riped copy of Spider Man on your desktop, which just happened to be next to your bank account information and home movies of your 2-year-old kids learning to walk. Since your kids weren’t wearing diapers, that’s child pornography. And since your bank account information is part of a police investigation, we’ve been forced to freeze your accounts. Enjoy eight to infinity in Gitmo.”

    Yeah, utter bullshit.

  10. 10
    hmd says:

    Well, you’d have to read the text of the bill, and have some knowledge about how the courts would likely interpret it. But “facilitates the violation of intellectual property laws” is not the same thing as “has a single pirated mp3.” That would actually be quite a stretch. Having a copyright picture in your browser cache would really be a stretch – not to say that an aggressive DA might not try it. Running a p2p program that offered downloads, AND having a single pirated mp3 available, would probably cross the line. So it may end up as a distinction without a difference.

    And of course, this would be quite scary for ISP’s – if they allow people on their network to run P2P, and any of them are offering downloads, then it might be said that the whole ISP’s infrastructure is “facilitating” the violations. So probably this is a subtle way for Disney to put pressure on ISP’s to monitor or restrict network usage by their customers. For this reason alone, it is a terrible bill.

    P2P really scares some people because it doesn’t have a centralized distribution point that can be owned, monitored, or managed.

  11. 11
    cleek says:

    now combine this with the fact that the FBI et al are in cahoots with ISPs. want to seize someone’s computer? get the ISP to respond to an HTTP request for http://www.myblog.com/public_domain.mp3 with a copyrighted file.

    tada! instant copyright violation.
    seize him!

  12. 12
    nightjar says:

    Z Says:

    I wrote my senator. All of you should do the same

    I’m typing fast as I can.

    I don’t think there has been a bill in recent memory fraught with more potential for govmint abuse than this one. Big Brother of Steroids.

  13. 13
    The Other Steve says:

    So if I get a DVD from netflix, and then copy that to a blank dvd… I just want to make sure I delete the temp files off my computer, right?

    This is purely a hypothetical question, I’m not implying that anybody would have actually made copies of Law & Order SVU seasons 1-4 so that they’d have something to watch while working out on the elliptical machine in the home gym.

    That would be elitist.

  14. 14
    Conservatively Liberal says:

    Good luck with overseas warez sites. Most of the good stuff is off in some other country already. I am against this, but I read ‘facilitate’ as actively participating in the distribution of copyrighted materials. This is a stupid idea for a law that is only going to be abused like most other ‘legal home invasion’ laws. Plus they would need to get the cooperation of overseas countries, and I don’t think they will be very excited about a law like this.

    Land of the free indeed. As long as you’ve paid for it, you’re free!

  15. 15
    The Moar You Know says:

    Awesome. I have a website on which I share mp3s. My own. Which are copyrighted. By me.

    Since the bill doesn’t seem to specify the definition of “authorized”, looks like I can look forward to the Feds kicking my door down at their whim.

    Oh well, that’s cool. The inter-web is getting old, anyway. Time to go outside and get some exercise.

  16. 16
    TheFountainHead says:

    Fuck this bill and the horse it rode in on! This is an ugly bill with so many potential angles of abuse it’s laughable. How did this get through the House? Who is pushing this crap? The RIAA, of course.

  17. 17
    ThymeZone says:

    Just when I think Libertarians are crazy — which, you know, they are — along comes something like this that makes me think, well, if government is going to act crazy, maybe nothing short of crazy response is going to stop them?

    I have a hunch that prosecutorial abuse is already a great and largely undiscovered scourge in this country, and that what we are seeing here is just the tip of an iceberg.

    I wish I could provide more support for my assertion without taking away a little too much anonymity, but I do have access to information about this problem that I can’t share here. Believe me, you’d be shocked if you knew everything that was going on in this area, just in your own town.

    Rather than write an essay on the subject, I will just point you here and suggest that you join up. ACLU is one of the few things standing between you and a government that pulls this kind of crap.

  18. 18
    Tsulagi says:

    This is a terrible, terrible bill.

    Yep. Introduced by a Democrat and passed overwhelmingly in a Democratic controlled House. At least Congressman No!, Ron Paul, voted against it. We need more of that guy.

    So let’s see, when Republicans were in control of both the WH and Congress, I was an unpatriotic Nazi appeaser when against stuff like warrantless wiretapping and MCA. Look forward to full Democratic control next year when once again I can be labeled an unpatriotic Nazi appeaser when objecting to computers in my home network being carted off to see if there are some evildoer mp3s on them. Politicians suck.

  19. 19
    ThatLeftTurnInABQ says:

    1. How the hell would law enforcement know (or at least suspect) you have copyrighted materials on your computer? ISP logs? P2P network stings?

    They will know the files are there because they will be the ones who planted them on your computer (how many Americans really have their systems locked down tight from a security standpoint?), either over the net or during the no knock search which happened while you weren’t home. Most home PCs aren’t that hard to break in to if you have physical access, even if they aren’t already compromised w/ respect to network security. The average FBI gumshoe could do it with a little bit of training.

    Which then justifies all their other trawling through you computer and the rest of your life.

    Camel’s nose, meet Tent.
    Tent, meet Camel’s nose.

  20. 20
    Scott H says:

    Some, latte-lapping pro-terrorist appeasement monkeys, might call it “Government. The Mafia with a flag.” Others, more generous, may see it as a program for poorly paid TSA agents to do their Christmas shopping.

    Always Think Forfeiture. [Reason Online]

    Nobody has ever cared about this stuff when it was some redneck having his broken-backed trailer seized for growing some scraggly cannabis in a coffee tin, but boy-howdy when it’s iPhones at stake?

  21. 21
    passerby says:

    HUH!!

    This bill was introduced into the House last month by none other that House Judiciary Committee Chairman John Conyers (D), Detroit. This is the same guy who will throw us a bone every now and then by calling for impeachment.

    Let me hold this up as an example of how there is no meaningful difference, other than philosophical, between the Democratic and Republican parties.

    The two party system exists to create the illusion of choice when in fact we have no choice.

    This is why, despite electing a Dem majority in 2004, nothing, nothing has changed.

    Barrack Obama has alluded to this phenomenon (lack of meaningful change) in several speeches stating “this has been going on for decades…for decades”.

    We can also see an example of this in this weeks “bi-partisan” vote on the flawed oil tax rollback proposal.

    For those who have eyes to see…

    T

  22. 22
    jake says:

    Five zillion dollars later they’ll have nabbed one guy who had an illegal copy of Cheap Trick’s “Live at the Buddahkan” on his HD.

    And he’ll be an employee of the DOJ’s Division of Internet Copyright Containment or whatever the hell they’re going to call it.

  23. 23
    cleek says:

    Yep. Introduced by a Democrat and passed overwhelmingly in a Democratic controlled House.

    thus following in the same grand Democratic tradition as the DMCA and the CTEA.

    heckofa job, Bill!

  24. 24
    Original Lee says:

    Here is the Congressional Research Service summary.

    Guess whose idea this bill was?

    [Footnote 11: The Coalition Against Counterfeiting and Piracy (CACP), Intellectual Property Enforcement Initiative: Campaign to Protect America (2007). The CACP is an initiative organized by the United States Chamber of Commerce. The CACP’s members include over 500 companies and trade associations including 3M, Cargill, Gillette, Honeywell, Nike, Verizon, the National Association of Manufacturers, the Pharmaceutical Research and Manufacturers Association. The CACP’s recommendations are also supported by major labor groups like the International Brotherhood of Teamsters, the Service Employee International Union, the American Federation of Music, and others.]

    The thrust of the bill appears to be to protect IP rights for concrete goods more than goods that can be digitized, but to non-lawyer me it looks as if it could be used against ordinary people if the enforcers felt so inclined. It needs amendment to protect innocent consumers, IMHO.

  25. 25
    Adolphus says:

    What makes this scarier is when it is paired with other Big Brother institutions such as using asset forfeiture laws as revenue enhancers (before an adjudication of guilt and even if found innocent you have to sue for your stuff back if it hasn’t been sold already) and the ability of Border and Customs agents and TSA to search your laptop at border crossings and airport security randomly and without probable cause.

    It’s not so much a gung-ho DA I worry about. It is the uneducated, computer ignorant police or TSA officer who has a quota to fill I worry about. How will he or she know if I paid for a song or movie via iTunes or ripped it off a DVD or CD when rummaging through my computer? How can I prove it to someone who gets all their technical information from a DOJ pamphlet? And by the time I do prove it, they have downloaded every file on my computer.

    Were I a DA and I had it in for someone all I’d have to do is email that person a copyrighted image, wait five minutes and seize their computer. Sure it’s entrapment, but by the time the lawyers hash it out they will have already copied the poor bastard’s address book, calendar, bank account info, email, internet history including passwords and all sorts of stuff.

    Remember that the RIAA thinks that ripping a CD for your own enjoyment is a copyright infringement. And whose definition will this new enforcement agency use? Theirs or ours?

  26. 26
    AmIDreaming says:

    (i) Encrypt your storage. If a byte of data lives on your machine, make sure it’s secured.

    (ii) Use an anonymizing proxy like Tor. Secure your packets as well and ensure they’re impractical to trace.

    [These are easy to set up and completely transparent in ordinary use once they’re properly installed.

    Steps like these may become indispensible habits, like wearing condoms.]

    (iii) Don’t trust legislators to look out for your privacy, ever. Your legal obligation to be truthful to law enforcement is not, and never will be, reciprocal.

  27. 27
    demimondian says:

    Sheesh. Um, folks? Going to Slashdot for information on IP violations is a little like going to the Republican party for information about terrorism. They have something of a hidden agenda.

    Go read the text of the amendments before you fly off the handle; really, they’re shorter than the average BJuice comments thread. The modifications of the bill in question have to do with the distribution of physical copies — phonorecords, counterfeit films, and other counterfeit physical items. The intent of Congress here has nothing to do with P2P and everything to do with factories producing knock-offs. It certainly has nothing to do with innocent infringement.

  28. 28
    Martin says:

    Go read the text of the amendments before you fly off the handle

    If we did that, we’d never get to fly off the handle. We’re good handle flyers here. Why are you taking our fun away?

  29. 29
    The Moar You Know says:

    AmIDreaming Says:

    (i) Encrypt your storage. If a byte of data lives on your machine, make sure it’s secured.

    (ii) Use an anonymizing proxy like Tor. Secure your packets as well and ensure they’re impractical to trace.

    [These are easy to set up and completely transparent in ordinary use once they’re properly installed.

    Steps like these may become indispensible habits, like wearing condoms.]

    (iii) Don’t trust legislators to look out for your privacy, ever. Your legal obligation to be truthful to law enforcement is not, and never will be, reciprocal.

    1. You are legally obligated to give your encryption key if law enforcement asks for it. Failure to do so is an offense all its own. And, if law enforcement decides they want in your data badly enough, there is not a product out there that they can’t crack.

    2. Tor is breakable as hell. Your word (impractical) says it all.

    3. Well, yeah.

    Make no mistake; if you’re doing something you shouldn’t be, you can be caught and prosecuted regardless of any measures you take. This bill raises the stakes substantially – just reading the part about making copyright infringment a felony, for starters, makes my blood run cold.

    Is it worth it to download some tunes? My guess is not for most people.

  30. 30
    nightjar says:

    Commenters say I am freaking out over nothing:

    It’s the proverbial “camel nose in the tent” situation. Even with mitigating amendments now, over time, a bill like this, once it’s on the books, is vulnerable to mischief by future congresses. It is against the law now to infringe on copywrite material, the seizure of property with a single mp3 file can be fuzzed over time to mean probable cause, possible cause, and then to reasonable suspicion.

    How many innocent people have had their cars and money snatched by the government because they were caught with a little much cash on them (according to the cops). And hence suspected of drug trafficking.

  31. 31

    Interestingly, this passed the house a month ago to no fanfare.

  32. 32
    John Cole says:

    Interestingly, this passed the house a month ago to no fanfare.

    Which only increases the possibility we are freaking out over nothing. Or that we were too busy with our heads up our asses worrying about the Primary. Or both

  33. 33
    TheFountainHead says:

    Demi, the amendments are all fine and good, but the intent of the law as passed is not. There is already legislation specific to these issues. Why would new legislation be introduced which is nearly entirely redundant if not to create loopholes for the future?

  34. 34
    pharniel says:

    it comes up from time to time, and hopefully obama will recuse him self from this piece of shit.

  35. 35
    pharniel says:

    also, i’m against the forfieture laws w/out a conviction in general.

  36. 36
    cleek says:

    And, if law enforcement decides they want in your data badly enough, there is not a product out there that they can’t crack.

    sure there are (assuming the crack has to be done in a reasonable amount of time – before the end of the universe, for example). but it’s much easier to just torture the keys out of you.

  37. 37
    AmIDreaming says:

    1. You are legally obligated to give your encryption key if law enforcement asks for it. Failure to do so is an offense all its own. And, if law enforcement decides they want in your data badly enough, there is not a product out there that they can’t crack.

    Do the words “I don’t recall” ring a bell? ;-)

    I can tell you with some confidence, though, that law enforcement would be very pleased if they could break the stronger forms of crypto.

    2. Tor is breakable as hell. Your word (impractical) says it all.

    There isn’t anything better around. It’s not an accident that the distribution of Tor nodes geographically is highest around Washington, DC. You can bet they aren’t all passing love notes from Larry Craig and Mark Foley.

    Make no mistake; if you’re doing something you shouldn’t be, you can be caught and prosecuted regardless of any measures you take.

    Like all infosec, the calculation isn’t absolute, it’s actuarial. The protection that personal crypto offers isn’t against any and all penetration. It’s against *general* harvesting, and raising the cost of looking at you in particular.

  38. 38
    nightjar says:

    Oh fiddlesticks!

    It’s so much more fun to freak out over much of nothing, than have much of nothing to freak out about. uhh, or something like that. And it’s not like this could be rolled into the Patriot act (officially, or unofficially), or used to sniff out ornery war protesters, or as a backdoor tool to snoop on suspicious characters.

  39. 39
    Jinxi says:

    The modifications of the bill in question have to do with the distribution of physical copies—phonorecords, counterfeit films, and other counterfeit physical items. The intent of Congress here has nothing to do with P2P and everything to do with factories producing knock-offs. It certainly has nothing to do with innocent infringement.

    That’s not exactly right. The language used in the law, which is just being expanded, deals with a time prior to the Interwebs. So when you read this:

    `(i) Any copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in the commission of an offense under subsection (a), any plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which the copies or phonorecords may be reproduced, and any electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords.

    This language also includes personal computers because they can and have been used as a means of “manufacturing, reproducing, or assembling such copies of phonorecords”. If we go by the exact language used, then we would have to assume that the law was in no way referring to Intellectual Property Rights as they stand now because the recording industry no longer produces “phonorecords”. The law isn’t doing that though.

    The law also states:

    `(b) Forfeiture and Destruction; Restitution-

    `(1) CIVIL FORFEITURE PROCEEDINGS- (A) The following property is subject to forfeiture to the United States:

    `(i) Any copies or phonorecords of a live musical performance described in subsection (a)(1) that are made without the consent of the performer or performers involved, and any plates, molds, matrices, masters, tapes, and film negatives by means of which such copies or phonorecords may be made.

    `(ii) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of a violation of subsection (a).

    `(iii) Any property used, or intended to be used, to commit or facilitate the commission of a violation of subsection (a) that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation, except that property is subject to forfeiture under this clause only if the Government establishes that there was a substantial connection between the property and the violation of subsection (a).

    So, if Suzie sends you an illegal download of “Born in The USA”, which you open, enjoy, then send on to your granny, you are both subject to forfeiting your computers.

    Finally, I see my true-blue Rep. Zack Flippin’ Space voted “Aye”. I truly regret ever helping that piece of dog crap get elected.

  40. 40
    demimondian says:

    Why would new legislation be introduced which is nearly entirely redundant if not to create loopholes for the future?

    Are you telling me that this would be the first instance of redundant legislation in the US Code? Wow. News to me, certainly. ;)

    First, as far as I know, this is the first text in the trademark and copyright sections which speaks directly to civil forfeiture of items carrying infringing marks or of films or phonorecords (that is, CDs) containing infringing material. That strikes me as a perfectly reasonable extension of current intent. If I’ve got a warehouse full of “Rodex” watches or “Brittany Speares” CDs, why shouldn’t I be subject to civil forfeiture proceedings?

    I understand the parallel with drug forfeiture cases, and agree that the concern is well-taken, but the correct threat against counterfeiters is reducing profit, not sending a bunch of already poor mules to jail.

  41. 41
    KCinDC says:

    The intent of Congress here has nothing to do with P2P and everything to do with factories producing knock-offs.

    And the intent of Congress is relevant how? We have plenty of laws intended to, for example, combat terrorism that (what a surprise!) get applied to people who have nothing to do with terrorism. And why is this legislation necessary, when we already have laws against counterfeit goods?

    Lessig for Supreme Court!

  42. 42
    demimondian says:

    Jinxi, did you actually read the text of what you clipped? Guess not.

    Section (i), taken out of context, sounds ever-so-threatening. However, it sounds a lot less ominous if you bother to actually put it in context:

    (2) CRIMINAL FORFEITURE PROCEEDINGS- (A) The court, in imposing sentence on a person convicted of an offense under subsection (a), shall order, in addition to any other sentence imposed, that the person forfeit to the United States the following property:

    `(i) Any copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in the commission of an offense under subsection (a), any plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which the copies or phonorecords may be reproduced, and any electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords.

    Notice the first word of that block quote: “CRIMINAL”. Now, is there a difference between “CRIMINAL” and “CIVIL” in US law?

    You know, I think there is, and it has to do with standards of proof. You can only be subject to CRIMINAL FORFEITURE if you’ve been convicted of a felony copyright infringement. That’s a tall order — and you ain’t gonna get there through the RIAA, sonny; that takes some hard-core RICO action.

  43. 43
    crw says:

    The EFF is not making a huge deal out of this, so I’m inclined to agree with demimondian. In particular, it seems the most egregious portion of the bill, essentially boosting the RIAA’s ability to extort file sharers in their mass lawsuits campaign, was stripped.

    It’s still a troublesome bill. It creates yet more useless bureaucracy and muddies an already muddy area of the law. But this doesn’t seem to be a high priority for the Senate, and on balance I doubt it’s as bad as you think. By the time the Senate deals with it, it could be narrowed further to target counterfeiters and bootleggers. Not worth getting the pitchforks out yet when Congress is up to far more egregious bullshit, like telecoms amnesty, that needs our attention.

  44. 44
    Jinxi says:

    So, if Suzie sends you an illegal download of “Born in The USA”, which you open, enjoy, then send on to your granny, you are both subject to forfeiting your computers.

    should be:
    So, if Suzie sends you an illegal download of “Born in The USA”, which you open, enjoy, then send on to your granny, you are both technically subject to forfeiting your computers.

  45. 45
    nightjar says:

    And the intent of Congress is relevant how? We have plenty of laws intended to, for example, combat terrorism that (what a surprise!) get applied to people who have nothing to do with terrorism.

    Exactly. No one thought the drug forfeiture laws intended by Congress for the Sherriffs dept. in Volusia county fl (and others throughout the country) to operate there own private shakedown ops of passing innocent tourists.

  46. 46
    b-psycho says:

    The reason why people “panic” about these things is that every time the government does something that at the time is thought to be narrow in scope and not a big deal, it turns into a huge clusterfuck & excuse for treating everyone like a criminal.

    Allow an inch, they will take a mile. Don’t allow the inch in the first place.

  47. 47
    D. Mason says:

    Why would new legislation be introduced which is nearly entirely redundant if not to create loopholes for the future?

    The first? I don’t think the commenter said that at all. I challenge you to name a piece of “redundant” legislation that wasn’t worded in such a way that allowed some new power that the original did not.

  48. 48
    ImJohnGalt says:

    Um…
    Customs Can Search all Files on a Laptop, U.S. Court Rules

    Read this a month or so ago. It extends to smartphones, MP3 players, etc.

    Forewarned is Forearmed.

  49. 49
    Janefinch says:

    The key to this bill is who is supporting it. If the RIAA is behind it, then it is indeed intended to do what you say. At present, digital copyright lobbyists are successfully coupling P2P “theft” with the manufacture and sale of physical counterfeit goods such as Louis Vuitton bags, lumping them together as IP theft. This is part of a multi-pronged approach: get IP offices established in government and law enforcement agencies, and then force ISPs to cooperate in identifying “violators”.

    A new business model still isn’t in their radar.

  50. 50
    CJ says:

    You guys realize how the criminal side of this works, right? The government is not out there looking for this stuff. They don’t spend a moment of their time on it.

    Instead, they only look at complaints filed by aggrieved parties. And do you have any idea who the aggrieved parties might be? If you guessed that they are the same ones that are actively trying to get your ISP, employer or school to give up access to your computer, you are correct.

    Further, in criminal cases the govt. can and will sieze any evidence that they feel they need. See, e.g. US Govt v. Pile of Cash. The FBI/local cops will simply grab your stuff, up to and including your entire CD collection, any discs of any sort laying around your office/home, anything that has a hard drive or memory (iPod, phone, computer, memory sticks), all for the purpose of forensically determining whether you have engaged in the alleged behavior. If you get your stuff back, it won’t be for a long time.

    Further, it is very likely that the aggrieved party will attempt to obtain all of the information gathered by the police as this is all useful in the context of a civil case. So, for example, if you are aquitted of piracy, you can still be nailed for copyright infringement. OJ knows how this works.

    Piracy and and copyright infringement are problems of which I am well acquainted as I am an intellectual property attorney. In my opinion these laws are not particularly well thought out and are nothing more than an attempt to paper over gaping holes in content provider’s business models and products. To be fair, some of the content providers have been overtaken by technological advance and they are not happy about the repurcussions. Tough shit. Buggy whip manufactures hated cars too.

    CJ

  51. 51
    Scott H says:

    1. I am not a lawyer, but I don’t believe you are required to give your password. There is some new case law. Check EFF, if you’re concerned. If they could crack your encryption they wouldn’t need your password. There are also ways to give your password and protect your privacy. I wish I had something worth encrypting, but my life is not fabulous. Anyway, isn’t there a lawyer in the whole John Cole Commentariat?

    2. Tor has obvious limitations; it is what it is.

    3. Whence this peculiar notion that one is obligated to be truthful to anyone – allowing an exception for in court under oath if one chooses to speak? (From folks who say one’s rights are granted by the Constitution? And the government is allowed to do anything it isn’t specifically forbidden to do? From your Mom, because, you do know, she always had some serious control issues?)

    All this crazy libertarian rant is keeping me from composing scathing letters to my Senators. I must go.

    Recommendations. Don’t buy DRM crap. Don’t download for free what isn’t offered for free.

    Openly and frequently and broadly ridicule, humiliate, and disgrace craven asshats.

    Contribute to the ACLU and the EFF.

    Contribute to your representatives. Aha! Email whispers, snailmail talks, cash money bones ’em in the ear.

    Buy Little Brother by Cory Doctorow for your kid or a kid you care about. Donate a copy to a teacher or a library. Download a free, no obligation, copy for yourself, because giving all of his stuff away has made Doctorow a bestselling success.

    (Metallica is still getting richer, but Metallica has had a policy of being ridiculous, bloaty bloaty assshats. But, hey, now the ridiculous, bloaty bloaty assshats are gallumphing to catch up to the clue train. Because, maybe, the ridicule was pushing them over into the humiliation and disgrace and making-less-money corner.)

  52. 52
    rumpole says:

    Here’s what the bill says:
    `(2) IMPORTATION OR EXPORTATION OF INFRINGING ITEMS- Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506.

    Under the Act, a “copy” occurs any time a work is “fixed in tangible form.” See 17 usc 101 (defining copy). That fixation requirement has been met when, for example, a computer loads a copy into RAM or a hard drive. (E.g., MAI v. Peak (9th Cir.). The Act distinguishes between works, not media. I don’t see the part enabling seizure at airports. Furthermore, the it’s what the statute says that matters, not what some congressman thinks it says. (See any number of Scalia opinions).

  53. 53
    Mark Gisleson says:

    For starters, the law means whatever the enforcers decide it means. Ask an African-American what that means.

    This opens the door for a war on IT just as much as Harry Anslinger’s legislation created the war on drugs, and the new war will be as much a war on the cultural left as the old one was.

    Under no circumstances does it make sense to make anything that grows naturally out of the ground illegal, and likewise you can’t have laws that make it illegal to do something as easy as copying a digital file.

    This is another pro-corporate, anti-human being law from our pro-corporate, anti-human being Congress.

  54. 54
    eddie says:

    The real point is that if there is an infringement, the harmed party has a remedy. Why should the government be in the business of trying to prevent such usurpation by a wrong doer, especially any such faciliating software can be used in a manner that does not involve any infringement? This is ridiculous. An analogy would be that all cars should be confiscated if I find a picture of a piece of property, because the car could facilitate a trespass on that property (whether or not such trespass has or ever will take place). We are starting down the slippery slope of punishment in advance of any wrongdoing in the name of prevention. This is crazy.

  55. 55

    […] John Cole has the details on a scary new bill from Rep. John Conyers that would “allow the Feds to seize hardware that has even one file coming from ‘dubious origins,’ e.g. downloaded from P2P. If passed into law, the bill would establish an Intellectual Property Enforcement Division within the office of the Deputy Attorney General.” The bill has already passed the House. […]

  56. 56
    Seanly says:

    Actually, John, you are not over-reacting. Our rights as purchasers & users of media have already been steadily eroded.

  57. 57
    nightjar says:

    John Cole has the details on a scary new bill from Rep. John Conyers that would “allow the Feds to seize hardware that has even one file coming from ‘dubious origins,

    Hard drive seizure — closest thing yet to seizing John Q. Public’s brain.

  58. 58
  59. 59
    flavortext says:

    (I am not a lawyer. This is not legal advice.)

    I’m sorry but I have to disagree. I read the bill and the appropriate sections of the United States Code, and though this bill may be intended for producers of counterfeit items, the scope of the bill allows for the seizure of computers involved in P2P or bootlegging activity in both civil and criminal cases. I doubt this means the TSA will be confiscating laptops left and right, but who knows what their operating definition of “probable cause” is. I’m willing to bet it’s not a very narrow one.

    In addition, the IP Protector office established in the bill is a shining example of corporate cronyism. Under the present system, individual corporations are responsible for finding and resolving copyright, trademark, and patent infringements through civil and criminal court cases. This bill changes that by creating a government office with the express mission to hunt and track down counterfeiting and copyright infringement. Drug czar, meet IP czar.

    As for the claims that this only affects physical items – electronic copies are included as well. From the bill, SEC. 202(b) Criminal Infringement of a Copyright:

    1) IN GENERAL- Section 2319 of title 18, United States Code, is amended by adding at the end the following:

    `(g) Forfeiture and Destruction; Restitution-

    `(1) CIVIL FORFEITURE PROCEEDINGS- (A) The following property is subject to forfeiture to the United States:

    `(i) Any copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a) of title 17, any plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be made, and any electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords.

    `(ii) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of a violation of section 506(a) of title 17.

    `(iii) Any property used, or intended to be used, to commit or facilitate the commission of a violation of section 506(a) of title 17 that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation, except that property is subject to forfeiture under this clause only if the Government establishes that there was a substantial connection between the property and the violation of section 506(a) of title 17.

    Criminal Infringement of a Copyright is also defined in 18 U.S.C. 2319:

    (a) Whoever violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and ( c ) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.

    So what does section 506(a) of title 17 say?

    (a) Criminal Infringement.—
    (1) In general.— Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, 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.

    In addition, “copies” as used in this bill is defined in 17 U.S.C. 101:

    “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

    If you don’t believe that bits on a hard disk or memory chip could possibly count, just ask Torrentspy how that worked out for them.

    And I haven’t even gotten into the validity of intellectual property. (You can own an idea? Really?)

  60. 60
    flavortext says:

    Correction: I meant “Criminal Infringement of a Copyright is also remedied for”. It’s defined in 17 U.S.C. 506(a).

  61. 61
    scarshapedstar says:

    Demimondian,

    If you lived through the past seven years of the Patriot Act and you still feel comfortable asserting that the Bush Administration would never, ever, ever try to wring every last inch of authoritarianism out of a mile of legislation… there is no hope for you and I hope you never vote again.

  62. 62
    dingle says:

    “For all intensive purposes, it’s brass tacks”
    -did anybody get the intent or purpose of your italics?
    Definatly calls for a free ride in my Camero.

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  1. […] John Cole has the details on a scary new bill from Rep. John Conyers that would “allow the Feds to seize hardware that has even one file coming from ‘dubious origins,’ e.g. downloaded from P2P. If passed into law, the bill would establish an Intellectual Property Enforcement Division within the office of the Deputy Attorney General.” The bill has already passed the House. […]

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