HR 2391: Revamped

Last Saturday, the Senate unanimously passed a rather morphed version of HR2391. To make a long story short, it has a new name: S. 3021, and you can find it here.

It’s a stripped-down version of what we talked about a few days ago. Why did this happen?

The really simple explanation for this is that this bill was passed in the Senate under certain rules which allows bills to be passed immediately, without any debate, provided no Senator objects to it. If even one Senator out of a hundred objects, then it has to be debated.

Since there are tons of bills that need to be passed in this short session, the sponsors of this legislation just stripped out everything anybody was likely to object to.

To make this easy, we’re going to refer to heading we used in our prior descriptions of the earlier bill, and say what has or hasn’t changed.

From our first article:

Big Brother Is Warning

Everything we talked about here is now gone. No statement saying P2Ping is a bad thing, no warning letters from the DOJ, no DOJ educational program. Since a lot of what was in these sections seemed pretty half-baked, its omission is probably wise.

A Citizen’s Arrest At The Movies

All this remains in the bill. Filming a movie at the movies becomes a felony, and the “citizen’s arrest” provisions remain.

We ought to emphasize that these provisions do not REQUIRE movie theatres to do such things. For a number of reasons, it’s unlikely that your run-of-the-mill movie theatre is going to hire people to watch, record, and grab people.

What is far more likely to happen is that during prerelease screenings (or perhaps major opening nights), movie companies will send trained people to do all that, and in all likelihood would have video evidence of any filming going on on top of any evidence in the recording device.

Some reading these provisions basically said, “I’ll just give a beating or worse to anybody who dares detain me.” That’s nice, but all that will do is add an assault or worse charge to your criminal case, which seems rather foolish for the sake of making a copy of a movie for complete strangers.

Clean Up Your Act Kazaa, Or Else

The lecturing to P2P software companies is gone.

Jail For P2Pers

Originally, these provisions would criminalize the “sharing” of 1,000 or more copyrighted works, or one prereleased work. Now it just criminalizes prereleased work (for music), or movies up to the time of VCR/DVD release.

That means one copy of a movie or music album that hasn’t been released yet can get you jail time.

However, “willfulness” needs to be shown. The specific provisions slices down “willfulness” more a bit by describing the offense as whether or not the miscreant knew or should have known that the work was meant to be commercially released. That’s going to make any “dumb kid” defense tough, pretty hard to make anybody believe that you’re so dumb you don’t know that when a movie gets made, it then gets shown.

This makes criminal prosecutions easier, though I don’t know whether or not it makes the cases easy enough for prosecutors to want to pursue more than a few token cases.

From our first article:

The Prohibition That Wasn’t

As we reported earlier, there were a set of provisions meant to protect companies that take the naughty bits out of films. Others have tried to make this sound like fast-forwarding was going to be criminalized.

These provisions are still in the bill, with some slight changes in wording. Those who told you this was going to criminalize fast-forwarding are claiming victory, though I can’t see why from the language changes. The provision that would effectively block TiVo from its plans to offer you alternative commercials while you’re fast-forwarding through the real ones are still there.

DOJ Suing People

H.R. 2391 contained provisions that would have allowed the Federal government to launch RIAA-like lawsuits against copyright infringers. Some claimed that these provisions would have passed the RIAA’s and MPAA’s dirty work onto the Federal government, which would have been pretty much . . . true.

In any event, S. 3021 has none of this in there.

What Next?

Next, the bill will go to a House-Senate conference committee (when the two branches of the U.S. legislature pass not-quite identical bills, usually a group of members from both houses get together to come up with a unified version). This will probably be routine.

After that, the two houses will vote on whether to accept the unified version, and if they do, the bill then goes to the U.S. President for signature. Given that President Bush hasn’t vetoed a bill passed by Congress, I very much doubt he’d start with this one.

How much will the world change should this pass? Not very much.

Recording pre-released and theatre-released movies will definitely be a very bad idea. If you get caught doing that, you will definitely be in deep doo-doo.

“Sharing” such work will in theory be a very bad idea, too, though it is a lot more doubtful the DOJ is going to be hellbent on catching and prosecuting any large numbers of people. In all likelihood, prosecutions under these provisions will be like those we’ve seen for warez; the DOJ will run an operation or two just to show Hollywood that they’re doing something and nail a few dozen flagrant violators.

Besides that, there’s really nothing else in this bill that’s especially bad for P2Pers. Even if this bill hadn’t been stripped, there wasn’t all that much in there.

But January begins a new Congressional term, and like the Terminator, Congress will be back to try again and pass more stringent laws than this one.


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