Importance

March 27, 2004

PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

Conservative Senator Orrin Hatch (R - UT) has frequently cast aspersions on sexually offensive broadcast programming. For example, see his recent comments regarding the current brouhaha over indecency on television (Hatch Decries Declining Morals on Broadcast TV). Yet, the logic of his statements on behalf of the recently introduced "Protecting Intellectual Rights Against Theft and Expropriation Act" (PIRATE Act) would have the Department of Justice lawyers working on behalf of pornographers. In Hatch's world, the FCC would work to crackdown on indecency while the DOJ fought on behalf of pornographer's rights.

Posted by Ernest at 11:50 PM

The PIRATE Act

Xeni Jardin of WIRED was, I believe, the first traditional journalist to write about the bill (Congress Moves to Criminalize P2P).

The essentials of the bill are actually quite straight forward. Instead of being required to bring only criminal copyright infringement prosecutions, the Act would permit the DOJ to bring civil copyright infringement lawsuits against copyright scofflaws. The bill does not change the standards for triggering DOJ concern under 18 USC 506 (basically, willful infringement for commercial advantage or a lot of willful infringement for no gain). The bill also establishes a pilot/training program and requires an annual report from the DOJ. Up to $2,000,000 may be allocated for the program.

There is one other important aspect of the bill. Once a copyright infringer has been busted by the DOJ and forced to pay a fine, the copyright owner can still sue the infringer for more damages. With a successful federal prosecution in hand, such a lawsuit would be a slam-dunk. Until the statute of limitations runs out (generally three years), a government-busted infringer is basically at the mercy of the copyright owner, who could likely bankrupt them on a whim. The only limitation on this is that any restitution payed due to the DOJ lawsuit would reduce or "offset" any subsequent civil action penalty. With a minimum penalty of $750 per infringement (and up to $150,000), this still leaves a major sword hanging over the head of DOJ-busted infringers.

Analysis and Commentary

Joe Gratz is absolutely right when he says this proposed act is simply rent-seeking (RIAA’s Next Step: A $2 Million Gift From Taxpayers):

[The Act] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.

Furdlog points out another cost of the Act; let's call it an "opportunity cost" (OK, That’s It):

Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?

This theme is continued in the Washington Post (reg. req.) ('Pirate' Bill Aims Law at Song Swappers). Fred von Lohmann of EFF is quoted as saying, "The drumbeat here is that the entertainment industry would really appreciate it if the DOJ would do their dirty work for them." This is also a cost that can't be calculated in dollar bills. So far, the RIAA hasn't actually gone to trial. You can be sure when they do, the publicity won't be pretty. How much better for some AG to take some of the public heat, while the RIAA gets the deterrence benefit.

Speaking of the RIAA, co-Copyfighter Donna Wentworth points out the hypocrisy of the copyright industry's support for the bill (Funding the War on Filesharing):

Okay--so the recording industry rejects voluntary collective licensing, implying that it's a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act--a government solution that would have taxpayers paying for lawsuits, not music.

Speaking of hypocrisy, well, not exactly, we come to the part of this posting in which I explain how Sen. Hatch becomes the pornographer's best friend.

Hatch and Pornography

Sen. Hatch and Sen. Leahy (D - VT) are co-sponsors of the bill in the Senate and both had press releases trumpting how well they've done what Hollywood requested of them. See Leahy's press release here: Leahy-Hatch Bill Takes Aim At Copyright Infringement. However, I found Sen. Hatch's press release more entertaining: Hatch Continues to Fight Against Copyright Infringement.

Unlike Leahy's press release, which focuses solely on copyright infringement, Hatch's discussion reveals a strange obsession with pornography on P2P networks:

Unscrupulous corporations could distribute to children and students a “piracy machine” designed to tempt them to engage in copyright piracy or pornography distribution.
Unfortunately, piracy and pornography could then become the cornerstones of a “business model.” At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become “human shields” against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.

....

Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as “human shields” against law enforcement.

My first thought was, "I'm surprised Hatch didn't pull a Gen. Jack D. Ripper imitation and start calling for protecting the precious purity of our children's bodily fluids." My second thought was, "does Hatch know what he is saying?"

Perhaps Hatch doesn't realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch's goals at once: reducing infringement and pornography redistribution.

Titan Media, a producer of gay pornography, is well-known for its aggressive copyright infringement actions (Titan Media Pumped-Up over digital distribution). I'm sure that they would be more than happy to cooperate and coordinate with DOJ lawyers to stop piracy of their products. How proud Hatch will be when the first DOJ-acquired restitution checks are turned over to purveyors of smut.

Hatch and Titan Media in agreement at last.

  Comments and Trackbacks (http://www.corante.com/cgi-bin/mt/mt-tb.cgi/1896)
The PIRATE Act is coming

Excerpt: http://www.corante.com/cgi-bin/mt/mt-tb.cgi/2700

Read the rest...

Trackback from StephenHargrove.com, Mar 27, 2004 11:58 PM
Larry Flynt, Poster-Child for the PIRATE Act

Excerpt: Fellow Copyfighter Ernest Miller points out that Orrin Hatch-of-the-opportunistic-anti-porn-invective appears to have forgotten that pornographers are copyright holders, too. And that the proposed PIRATE Act, then, makes them very odd...bedfellows. Fra...

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Trackback from Copyfight, Mar 28, 2004 4:32 PM
Larry Flynt, Poster-Child for the PIRATE Act

Excerpt: Fellow Copyfight-er Ernest Miller points out that Orrin Hatch-of-the-opportunistic-anti-porn-invective appears to have forgotten that pornographers are copyright holders, too. And that the proposed PIRATE Act, then, makes them very odd...bedfellows. Fr...

Read the rest...

Trackback from Copyfight, Mar 28, 2004 4:37 PM
Larry Flynt, Poster-Child for the PIRATE Act

Excerpt: Fellow Copyfight-er Ernest Miller points out that Orrin Hatch-of-the-opportunistic-anti-porn-invective appears to have forgotten that pornographers are copyright holders, too. And that the proposed PIRATE Act, then, makes them very odd...bedfellows. Fr...

Read the rest...

Trackback from Copyfight, Mar 28, 2004 4:39 PM

No one seems to be linking to the text of the bill itself. It's S2237, http://thomas.loc.gov/cgi-bin/query/z?c108:S.2237: . The text is simple, it mostly just inserts "or the Attorney General in a civil action" after "the copyright owner" in the statutes dealing with suing for copyright infringement.

Posted by Cypherpunk on March 29, 2004 05:38 PM | Permalink to Comment
Koleman Strumpf, conservative Cato Institute

Excerpt: Koleman Strumpf, conservative Cato Institute affiliate just co authored a paper on file sharing. The upshot: "Even in the most...

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Trackback from An imaginary place in a reactionary time, Mar 29, 2004 11:58 PM

When are Congress and the music industry going to realize that this won't work??? P2P isn't going to go away, and neither will digital copying of files. The world went and changed on the music industry. The music industry responds by.... fighting a legal war against...let's see, who's a good target.... oh, I know... their VERY OWN customers!!! That's not good enough, so let's get the government do it for us!!!! The technology won't disappear just because the way-too-big corporate juggernauts that destroy individuality in music aren't turning enough of a profit. The music industry needs to change. The guys in suits who make BILLIONS off other people's creativity are just gonna have to find another way to make money.

Posted by krash on March 30, 2004 04:21 PM | Permalink to Comment
The Importance of...: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

Excerpt: The Importance of...: PIRATE Act Reveals Sen. Hatch as Strange...

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Trackback from Overfloater, Mar 30, 2004 11:08 PM
File Sharing Lawsuits At Berkeley

Excerpt: Well, everybody including Mark Cuban (the owner of the Dallas Mavericks who just started blogging) is talking about music and copyright somewhere, it seems. Cuban has suddenly become very active on Pho talking about the Leahy-Hatch bill proposing to ma...

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Trackback from bIPlog, Mar 31, 2004 12:21 AM
File Sharing Lawsuits At Berkeley

Excerpt: Well, everybody including Mark Cuban (the owner of the Dallas Mavericks who just started blogging) is talking about music and copyright somewhere, it seems. Cuban has suddenly become very active on Pho talking about the Leahy-Hatch bill proposing to ma...

Read the rest...

Trackback from bIPlog, Mar 31, 2004 12:24 AM

An interesting thought, but do you really think that protecting copywrights on p2p's is going to benifit the porn industry? I imagine that, because of pornography's addictive nature, the industry benefits much more from the new addicts they get from the p2p's than it loses in legitimate business. I don't think Hatch has much of a chance of slowing the p2p's down, but I think his goal is to try to shut down one source for pornography, by eliminating at least the illegal ones, if not the legal.

Posted by dave on March 31, 2004 02:33 AM | Permalink to Comment
Sen. Hatch as Strange Ally of Pornography Industry

Excerpt: Ernest Miller has a great take on the PIRATE act -- he takes the most insightful comments from the net and goes on to postulate about Hatch being an ally to the pornography industry: Perhaps Hatch doesn't realize this, but most pornography is copyrigh...

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Trackback from Mayhem & Chaos Blog, Apr 1, 2004 11:01 PM
PIRATE Act Sneaking Through Congress

Excerpt: C|Net News's Declan McCullagh reports that legislators are trying to sneak the "PIRATE" Act through Congress and the bill may be voted on by the Senate in little more than a week ('Pirate Act' raises civil rights concerns). For those...

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Trackback from Copyfight, May 26, 2004 1:54 PM
Important information on the "PIRATE Act"

Excerpt: Senator Orin Hatch and the pornography industry working together for the PIRATE Act? *********************************************** Wiretaps for civil copyright infringement?...

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Trackback from Blind Mind's Eye, May 27, 2004 8:26 PM
INDUCE Act is Free Speech Killer

Excerpt: Tomorrow, Senator Orrin Hatch (R - UT) will introduce one of the most blatant attempts at copyright maximalization ever attempted - the INDUCE Act. Fred Von Lohmann, Senior Intellectual Property Attorney for EFF, broke the story on Deep Links (INDUCE...

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Trackback from Copyfight, Jun 17, 2004 6:16 AM
Should Have Seen the INDUCE Act Coming

Excerpt: Senator Orrin Hatch (R - UT) is threatening to introduce a new copyright bill that would punish anyone who "intentionally aids, abets, induces, counsels, or procures" copyright infringement (INDUCE Act is Free Speech Killer). Two months ago, the Senato...

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Trackback from Copyfight, Jun 17, 2004 8:40 PM
The Obsessively Annotated Introduction to the INDUCE Act

Excerpt: Yesterday, as C|Net News reported, Senator Orrin Hatch (R-UT) officially introduced the INDUCE Act to the public (Senate bill bans P2P networks). See also, Susan Crawford (INDUCE Act introduced) and Larry Lessig (even I can’t believe this). Read the bi...

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Trackback from The Importance of..., Jun 24, 2004 10:58 AM
PIRATE Act + INDUCE Act = ???

Excerpt: On Friday, C|Net News reported that the Senate had passed the PIRATE Act (S.2237 Status) "overwhelmingly" (Senate OKs antipiracy plan). The Act would permit government to bring civil enforcement lawsuits against willful infringers. As Frank Field said ...

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Trackback from The Importance of..., Jun 27, 2004 5:01 PM
The INDUCE Act (IICA) - Putting the Pornography Industry in Charge

Excerpt: I've discussed before how Senator Orrin Hatch's (R-UT) legislative proposals seem to strangely benefit pornographers. See, PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry. Why should the Inducing Infringment of Copyrights Act (IIC...

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Trackback from The Importance of..., Jul 8, 2004 6:23 AM

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