H.R. 2391

If anything happens soon in the U.S. Congress on the whole digital copying issue, H.R. 2391 is going to be it.

It is an agglomeration of a number of bills that have been floating around (some of which have nothing to do with P2Ping and the like).

Right now, it’s on the agenda to be voted on by the Senate. To make a long story short, this is a lot closer to becoming law than anything else you’ve heard about.

This will be a two-part series. Today, we’ll talk about most of the various provisions found in Title 2 of the bill. Tomorrow, we’ll talk about the alleged “illegalization” of “fast-forwarding” and the prospects of the government suing you for P2Ping, too.

Big Brother Is Warning

Title 2 starts off with a long statement saying that P2Ping is a very bad thing indeed, and even worse, nobody doing this thinks they’ll ever get caught or prosecuted for it.

So what do they plan to do about it?

Well, first, the Department of Justice is authorized to find P2Pers, then send their ISPs warning letters (but not more than 10,000 of them over an 18-month period) which the ISP is supposed to forward to the P2Per. Unless the DOJ also sues to find out the P2Pers identity, they will not find out the P2Per’s identity.

The bill’s provision is odd in that this is called a “voluntary program.” I think it means that it’s voluntary for the DOJ to do or not, but one could reasonably interpret the actual language as saying that ISPs don’t have to do forward the letters.

It also contains an odd provision which states that if an ISP participates in the program, that fact is inadmissible in any legal action a P2Per might take against the ISP. They obviously don’t want ISPs to be sued by P2Pers, but this is a rather clumsy way of preventing it.

This bill also provides for additional training for DOJ personnel, a request to establish an “Internet Use Educational Program” to inform the public that this is not good to do, and gives DOJ $15,000,000 to do all this.

It’s hard to say what would happen if this became law. First, the DOJ can decide not to send out warning letters (indeed, I suspect this eighteen month period is really more a trial period for DOJ to learn and get practice on how to identify users than anything else). However, if they go so far as to issue warning letters, given some other provisions of the bill, it would be safe to think it likely that DOJ would also want to get the identity of P2Pers for either civil or possibly later criminal prosecution.

A Citizen’s Arrest At The Movies

This provision basically says, “If you record a movie at the movies, you’ll get fined if you’re lucky, or go to jail for up to three years (six if you’re a repeat offender).

What is interesting about this provision is who initially determines lawbreaking. It’s the movie employees. If they reasonably decide that you’re filming, they’re entitled to grab you for questioning and/or holding you until law enforcement arrives.

Furthermore, the bill specifically provides that anyone detained can’t sue or press charges against the detainer.

The bill is trying to immunize movie personnel from enforcing the law, but I don’t think they got the job done here. Anybody who wanted to sue the movie theatre would argue that the place didn’t have reasonable cause, and while I doubt too many of these cases would win in court, it wouldn’t stop revenge lawusits which would force the movie theatre and/or employee to bear the expense of being sued.

For these reasons, I don’t believe movie theatres showing released films are going to be too gung-ho about this. However, at the far fewer (and no doubt better supervised/equipped) pre-screenings, it’s quite likely there will be somebody from the movie company with a video camera who’ll get whatever is allegedly being done on tape.

Clean Up Your Act, Kazaa Or Else

The next chunk of Title 2 basically says to the P2P software companies, “You’ve been very bad. You enable massive copyright infringement and let little kids get porn easily. Clean up your act and get legit, or we’re going to clean it up for you.”

This is a warning. The next implied step would be illegalizing any P2P software that doesn’t meet these standards.

Jail For P2Pers

This next section says that if you share 1,000 or more copyrighted works, or one prereleased work “with reckless disregard of the risk of further infringement,” you can go to Club Fed.

What does “reckless disregard of the risk of further infringement” mean? The down-and-dirty explanation is that if you do this, get caught, and get warned or sued, then you get caught again, this will be considered willful behavior. A new term “knowing with reckless disregard” is being used as the standard of proof, but it’s a distinction without any real-life difference.

It’s conceivable that down the road, other evidence might be used to prove willfulness (i.e., public posts in forums, for instance), but initially, any criminal cases will be as air-tight as possible. That’s why warning letters from the DOJ could be a big deal for anyone receiving them. They could well mean, “Two strikes and you’re out.”

Tomorrow, fast-forwarding, and new suers.

Email Ed