SMITH WON'T AMEND P2P BILL TO ACCOMMODATE ISPs

“The Department of Justice says ISPs are protected” now and would continue to be under HR-4077, Smith said. The bill amends Sec. 506(a) of the U.S. Code, and Smith aide Joe Keeley pointed out language in the existing statute that DoJ says provides protection. Smith made clear, though, that he understands some ISPs are still concerned, and said “I want to make clear that I will be meeting with ISPs” to discuss those concerns.

At least 2 members of the subcommittee share the ISPs’ concerns. House Internet Caucus Co-Chmn. Boucher (D-Va.) and Rep. Lofgren (D-Cal.) said there was much in the bill they supported, but lack of specific ISP liability was one problem. Boucher told us last week that he might offer an amendment at the subcommittee markup to add ISP liability language modeled on the Digital Millennium Copyright Act. However, at the markup he said that if he offered an ISP liability amendment it would be at the full committee markup. Keeley said adding such a provision “could do more harm than good.”

As for the lowered prosecution threshold, Smith said moving from a “willfully” infringing standard to a “reckless disregard” when a file sharer offers 1,000 copyrighted works would mean “only the most egregious infringers” would be in danger of prosecution. But Lofgren said that standard was “very broad.” Rep. Forbes (R-Va.) said “I'm more and more concerned about criminalization” of behavior and echoed arguments by Boucher that innocent minors could be ensnared. Smith said the bill doesn’t target minors, and the 2 engaged in a long discussion of the issue after the markup. Forbes ended up supporting the bill and opposing 2 amendments that would have watered it down. Despite their concerns with the lowered threshold, neither Boucher nor Lofgren sought to amend that portion of the bill.

They did each offer their own amendment related to the portion of the bill that survived from an earlier bill, HR- 1561, although both amendments failed. That section directs DoJ to conduct an education campaign on copyright law. Boucher, as he had said he would, offered an amendment to strike the whole section. He said DoJ wasn’t equipped to conduct such a campaign -- they might not correctly describe fair use, for example -- and he had concerns about funding. The bill authorizes $15 million for the campaign, but he pointed out appropriators aren’t bound by that. The bill stipulates that funding wouldn’t come from law enforcement, but Boucher said it could come from other areas, and Lofgren mentioned the Civil Rights Div. as one possibility. (Hearing that argument, Rep. Waters [D-Cal.] later offered an amendment stipulating the funds wouldn’t come from there as well, and Smith accepted it without objection.)

Smith said the education campaign was part of the bill’s “three-pronged approach” of deterrence, enforcement and education. Rep. Weiner (D-N.Y.) said there was no better agency to educate consumers on the law than DoJ, and given that the file-sharing debate “is caught up in misperceptions,” information from law enforcement would be helpful. Citing Forbes’ concern for innocent minors, Subcommittee ranking Democrat Berman (Cal.) -- the bill’s chief cosponsor -- said the campaign “is for the kid who doesn’t know it’s wrong.” Boucher said copyright holders should pay for a campaign, but Weiner said it could be more trusted coming from law enforcement. The amendment failed 4- 14, with Lofgren, Waters and House Judiciary Committee ranking Democrat Conyers (Mich.) joining Boucher. Conyers has sponsored tough copyright legislation, and authored some provisions in HR-4077. He withheld his vote on Boucher’s amendment until it was clear it had failed, and then voted aye.

Lofgren’s amendment was narrower, and sought to remove Sec. 3(a)(2) of the bill, that says the FBI and the Register of Copyrights shall “facilitate the sharing among law enforcement agencies, Internet service providers, and copyright owners of information concerning acts of copyright- related infringement.” She said she was unclear what information would be shared, raising privacy concerns for ISP customers. Smith said ISPs and copyright owners “are particularly adept at identifying copyright infringers,” and sharing information with the FBI could help lead to prosecutions. Berman said such sharing already is “perfectly legal.” This provision, he said, “simply tells the FBI to share” with stakeholders but doesn’t expand FBI powers. He pointed to other language in the bill that “very specifically says nothing” would compel ISPs to share information: “There are no new obligations on ISPs.”

On this amendment Weiner sided with Lofgren, but came at the issue from a slightly different angle. He said DoJ showed virtually no interest in pursuing file-sharers, so he argued the provision was too vaguely written, particularly the phrase “facilitate the sharing.” Berman said it “directs them to share,” but Weiner responded: “It kinda doesn’t though.” He also shared Lofgren’s concern that it didn’t stipulate what information would be shared. Weiner said it seemed more like “Sense of the Congress” language expressing congressional desire rather than a mandate, and Lofgren said it more appropriately belonged in Sec. 9 of the bill, which contains “Sense of the Congress” language. Smith said Lofgren’s concerns about privacy could be put in report language attached to the legislation that would further guide implementers. Her amendment also failed 4-14, with Boucher, Waters and Weiner joining her.

There was very little controversy about the section banning camcorder use in movie theaters, language based on a Conyers-Berman bill and a Senate bill by Sen. Cornyn (R- Tex.). But Conyers expressed concern about liability for theater owners in the bill, noting that state laws banning camcorder use in theaters don’t hold the theater responsible. Smith said he'd work with Conyers on that concern and perhaps amending language could be offered at full committee.

Smith told us he couldn’t guess when a full committee markup would be held, but he hoped it could happen before the summer. The House is about to enter a 2-week recess. House Internet Caucus Co-Chmn. Goodlatte (R-Va.), however, told us he was optimistic the full committee would take HR-4077 up soon and pass it, noting the committee can act quickly when necessary. Goodlatte has a strong anti-piracy reputation, and when asked why he didn’t participate in the debate on HR- 4077, he said: “When things are going your way, why speak up?”

Although Smith told Forbes that the bill doesn’t target minors, Public Knowledge Pres. Gigi Sohn said in a statement after the markup that while some parts of the bill are worthwhile, the “larger question is whether Members of Congress, in an election year, want to accept the responsibility of having 12-year-olds hauled away in handcuffs by the FBI.” She denounced the reduced threshold for prosecution in the bill. But RIAA Chmn. Mitch Bainwol in a statement said the reduced threshold “ensures that federal prosecutors have the tools and expertise they need to fully enforce the laws on the books.” He also praised the Sense of the Congress provision that chides some P2P software distributors for not working to block unauthorized file- sharing and the distribution of viruses and pornography. Business Software Alliance Pres. Robert Holleyman in a statement said HR-4077 will “empower prosecutors to launch cases against P2P pirates who infringe copyrights by knowingly making software and other intellectual property available to the public for electronic distribution.”