Wednesday, October 13, 2004

Ashcroft: Seek and Hide No More

Attorney-General John Ashcroft must have felt it coming: the same day the U.S. Supreme Court (USC) denied to hear RIAA v. Verizon he announced to upstep the battle against piracy. A battle, which starts to turn into a war, with possibly comparable methods and collateral (civilian) damage as the war on drugs and the war on terrorism. reports (thru BoingBoing):

In an extensive report released Tuesday, senior department officials endorsed a pair of controversial copyright bills strongly favored by the entertainment industry that would criminalize "passive sharing" on file-swapping networks and permit lawsuits against companies that sell products that "induce" copyright infringement.

"The department is prepared to build the strongest, most aggressive legal assault against intellectual-property crime in our nation's history," Attorney General John Ashcroft, who created the task force in March, said at a press conference in Los Angeles on Tuesday afternoon.

Aggressive assaults, that is music to the ears of the RIAA. More music from the report, p. 40, specifically related to today's USC decision:

In civil cases where the constitutionality or viability of importent civil enforcement tools are at issue, the Department of Justice should intervene by submitting a written brief to the court hearing the case, to protect the use of civil enforcement methods in accordance with federal law. In addition to defending the validity of the DMCA's subpoena provision, the Justice Department has shown its commitments to intervene in cases when other intellectual property laws have come under constitutional attack. Therefore, the Department of Justice should closely monitor civil enforcement developments in the law that may reduce the effectiveness of the private, civil enforcement scheme. When such court decisions arise, the Justice Department must identify them an take affirmative steps to correct them. (italics added)

It is will be interesting to see what affirmative steps Ashcroft may take against the "constitutional attack" on intellectual property rights. As in a war, he might launch an aggressive constitutional counter-attack. Curving down the constitutional rights of privacy and the First Amendment a bit.

Interesting of the report is also the criminalization of certain acts of file-sharing. It reminded me of an article by Salil Mehra, just posted on SSRN: Software as a Crime: Japan, the United States and Contributory Copyright Infringment.

Here is the abstract:

This article sets forth two main points. First, it tries to explain why peer-to-peer (P2P) networks have led Japan and may lead the United States to choose criminal enforcement against contributory copyright infringement. While criminal enforcement existed in both societies prior to the popularization of P2P networks, it was rare and largely directed at direct infringers. Second, the article predicts that, while Japan and the United States may similarly bring to bear criminal law resources and norms to face the same challenge - contributory copyright infringement using P2P and related technologies - the results will likely to be significantly different. The social and legal contexts suggest that in the U.S. criminalization may buttress and perhaps complement and encourage more civil enforcement. But in Japan, administrative pronouncements and judicial decisions have diminished the usefulness of civil enforcement to rightsholders. As a result, Japanese criminalization may substitute for the development of an effective system of civil remedies to protect intellectual property.
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There is more at Ars Technica, which notes that the report can't be copy-pasted due to security settings. Pretty strange for a public document: it makes it hard to quote and 'caused some extra typing on my side.
A Copyfighter's Musings says to report in greater detail later.
Furdlog points out the "sweeping recommendations"


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