DOJ prepared to prosecute P2P users

By Ann Harrison
Network World Peer-to-Peer Newsletter, 08/26/02

On Aug. 20, CNET News reported that the U.S. Department of Justice is prepared to begin prosecuting P2P users. The news service quoted John Malcolm, a deputy assistant attorney general, who said: "Americans should realize that swapping illicit copies of music and movies is a criminal offense that can result in lengthy prison terms."

According to CNET, Malcolm also told an audience at the Progress and Freedom Foundation's annual technology and politics summit that, "A lot of people think these activities are legal, and they think they ought to be legal."

File swappers can already be sued under civil law. But Malcolm asserted that civil remedies were not an adequate tool against file swappers with few assets at risk. He said the criminal prosecutions against file swappers were potentially more effective because they could be conducted in multiple jurisdictions and across international borders. This is assuming of course, that U.S law enforcement can convince the police in other countries to arrest their own citizens for copyright violations.

Malcolm went on to call the Internet "the world's largest copy machine" and insisted that criminal prosecution of those who violate copyright laws are needed to protect American industries that create and sell content.

Malcolm, who is responsible for the wing of the Justice Department that prosecutes copyright and computer crime cases, declined to say when the Justice Department would begin prosecuting P2P users. But he told CNET that the Justice Department's response to the Sept. 11 attacks had prevented it from focusing earlier on copyright violations.

The Justice Department was prodded back into action a few weeks ago when influential members of Congress began pressing it to use the obscure No Electronic Theft (NET) Act, to prosecute P2P users. The 1997 act makes it a federal crime to share copies of copyrighted products with friends or family members if the value of the work exceeds $1,000. Those who violate the law can serve a year in prison for or up to five years if the value of the work exceeds $2,500.

Cary Sherman, president of the Recording Industry Association of America (RIAA), who appeared on the same panel with Malcolm at the summit, said such prosecutions could be "helpful." "I think they would think twice if they thought there was a risk of criminal prosecution," Sherman said.

Not surprisingly, his colleague from the motion picture industry, Christopher Cookson, executive vice president of Warner Bros., agreed on the same panel that there was "a need for governments to step in and maintain order in society."

In its dispatch from the conference, CNET also quoted a person who remains a voice of reason in the copyright debate, Gary Shapiro, president of the Consumer Electronics Association. Shapiro said he was skeptical that use of P2P should be a criminal offense and pointed out that if the Justice Department wants to make file traders criminals, there are about 70 million people in the U.S. breaking the law.

If the Justice Department is going to begin arresting file traders on the behest of the movie and recording industry, what kind of product boycott or out and out civil disobedience can we expect from the P2P community? It's hard to tell, until the feds start actually attempting to "maintain order" and lock people up.