House Committee Defends Antipiracy Bill
ISPs and fair use advocates have little to fear from an antipiracy bill pending in the House, according to the bill’s conference report filed by the House Judiciary Committee Fri. HR-4077, by Courts, Internet & Intellectual Property Subcommittee Chmn. Smith (R-Tex.), is a patchwork of legislative approaches to piracy. It calls for an education program by the Dept. of Justice, reduces thresholds for prosecution, targets distribution of prerelease works and camcording of movies, and protects a company whose technology allows viewers to skip racier parts of DVD movies. That last provision drew a separate critique from committee Democrats, led by ranking Democrat Conyers (Mich.) and subcommittee ranking Democrat Berman (Cal.).
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Those Democrats objected at the full committee markup that cleared HR-4077 (WID Sept 9 p3), but Berman and Conyers strongly support other provisions of the bill. HR-4077 -- though not criticized as much as a Senate bill targeting those encouraging infringement (see separate item, this issue) -- has been faulted by ISPs and technology groups such as CEA. The report acknowledges those critiques but insists they've been addressed.
ISPs will be able to protect the privacy of their customers, the report says. Some ISPs were wary of participating in a program where DoJ attempted to warn specific broadband customers of piracy violations through their ISPs. ISP participation is voluntary, the report said. Providers will be reimbursed “promptly” for expenses of participation, the report said, and participating “will not result in the transmission of personal subscriber information back to the Department of Justice.” There are other legal means for DoJ to obtain that information, the report said. All participating ISPs will do is pass on sealed letters from the DoJ, unread, to customers the ISP identifies through their IP addresses. The report did express hope ISPs would maintain IP records more than a few days and would be “forthcoming” with information so DoJ doesn’t “waste its resources sending warning letters to ISPs that cannot or will not be forwarded to subscribers.” The DoJ will be allowed to send 10,000 letters; those not forwarded to ISP customers won’t count.
The committee defended reducing thresholds for DoJ prosecution to 1,000 or more copyrighted works, 11 or more totaling $10,000 or more, or 1 prerelease work. The report compared sharing 1,000 copyrighted works online without compensation to someone who “distributes 1,000 keys or more to the front door with reckless disregard that at least one of the key holders will enter the house without permission.” The committee dismissed the notion that no economic harm has been done, and added that someone “who enters a house without the owner’s permission using a key gained from a third party is criminally liable whether or not they chose to steal a physical compact disc containing music or a digital video disc containing a motion picture.” The report also said it was unlawful to use a neighbor’s car without permission even if the gas and oil are replaced.
Because DoJ “is unlikely to have the resources to pursue every instance of pre-release works,” the committee said, civil suits also will be permitted, and the committee predicted more civil than criminal cases. At the Copyright Office’s urging, the committee dropped language in HR-4077’s predecessor bill stating prerelease works didn’t have to be registered with the Copyright Office or the Dept. of Homeland Security’s Bureau of Customs and Border Protection (CBP). The Copyright Office said this might be a disincentive to register works. CBP told the committee it needed flexibility in how to assess copyrighted works, and changing the statute might have reduced that flexibility.
Widespread Internet distribution on P2P networks was cited as a reason to include a provision from a Berman bill outlawing camcording movies. CEA had raised many concerns with previous drafts of the legislation, which the report says have been addressed. For example: (1) A salesman using a camcorder to film a TV screen in a store wouldn’t be prosecuted, because the law applies to “copying a movie in a motion picture exhibition facility, which has to be a movie theater or similar venue.” (2) Individuals camcording their TV screens fall under the same exception, as the movie showing must be “open to the public.” (3) The “open to the public” guideline also protects a university lab official filming a TV for research.
Committee Democrats took issue with the inclusion of the Family Movie Act, which had already cleared the committee as a stand-alone bill by Smith, HR-4586. The language permits companies such as ClearPlay to provide hardware and service that allows consumers to skip unwanted content, a technology being challenged by MPAA and major studios. The issue is in federal court, and the minority -- including Reps. Scott (Va.), Watt (N.C.), Jackson-Lee (Tex.), Waters (Cal.), Wexler (Fla.), Baldwin (Wis.) and Sanchez (Cal.). -- quoted the Register of Copyrights as telling a recent hearing that “I do not believe that such legislation should be enacted -- and certainly not at this time.” The minority argued ClearPlay had been negotiating settlements with studios, but “due to the two hearings on this issue and the movement of this editing proposal, those negotiations have stalled; ClearPlay has been emboldened to present several new demands that represent a significant step back from its previous positions.” The language in HR-4077 would make explicit that such a service was legal, as long as it was confined to the home and didn’t create a fixed new copy of an original work, which is and would remain illegal.