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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance of...

October 08, 2004
Copyright Shenanigans Not Over in Congress - Piracy Education Act DangerousEmail This EntryPrint This Entry
Posted by Ernest Miller

Public Knowledge reports on a bill that includes a number of different copyright provisions thrown together, HR 4077 the "Piracy Deterrence in Education" bill. It combine several different significant changes to copyright law that haven't gotten nearly the attention they should, thanks to the INDUCE Act. Could it be that INDUCE was merely meant to be a distraction? [Stop being conspiratorial - Ed.]. Oh, yeah, and it designates the Oak as the national tree:

The tree genus Quercus, commonly known as the oak tree, is the national tree.

Public Knowledge has put together talking points on the bill. Scary stuff considering the significant and little debated changes to copyright law this will create:

  • Fundamental Change of Copyright Law that:
    • Expands Infringement:
      The bill establishes “offering for distribution” as the basis for a criminal copyright violation, and “making available” as the basis for a civil violation–regardless of whether there is any distribution or copying, let alone infringement. Those standards are far too vague, and could include material stored on computers and shared on networks. The bill is a departure from existing copyright principles and could have a number of unforeseen consequences. Example: use of innovative music sharing feature of Apple’s popular and legal iTunes program would be made a crime.
    • Worsens Penalties:
      Requiring the U.S. Sentencing Commission to modify its guidelines to significantly increase the criminal infringement sentences has the danger of creating a punishment not fitting the crime.
  • Federal Government Enforcing Private Claims:Traditionally, to enforce criminal copyright infringement, the copyrighted work needs to be registered with the Copyright Office. Under Section 6 of HR4077, in conjunction with S. 2237, “The PIRATE Act,” the Justice Department could pursue a copyright infringement claim, regardless of whether the work was registered. There are two reasons why this is the wrong road to go down:
    • Registration Formalities:
      Yet another erosion of traditional copyright law’s formal requirements of registration. Registration is an important component of copyright because it puts the public on notice of an author’s work. Currently, to have the government enforce a copyright criminally, the copyright must be registered, which is by most artists register their copyright so they can have full force of the law. Under 4077, this incentive to register will disappear.
    • Copyright Owners should Bear the Costs, not Taxpayers:
      It is inappropriate for tax-payer dollars to be spent on enforcing the private rights of action of copyright owners. The bill would authorize $15,000,000 to Department of Justice to enforce private claims. Copyright holders should continue to file their own lawsuits, regardless of whether some might be hesitant to because of the ill will they generate among consumers. This section is an attempt to let the federal government do their work for them.
  • Recording in a Movie Theater into Imprisonable Offense:
    Section 8 aims to make the unauthorized use of a video camera in a movie theater to transmit or make a copy of a copyrighted work into an imprisonable offense. Fair use protections guaranteed under copyright law would not apply. No one is condoning infringement or “bootlegging” of motion pictures, however it is conceivable that someone would need the fair use right to record a film, or part of a film. Example: a film critic, religious scholar, or student could video record key segments of a movie for a later public debate. Such an act would likely be allowed under copyright law today, but would be a crime under this section. When copyright infringement occurs, a court decides on a case-by-case basis whether actual infringement has taken place. This bill would unnecessarily criminalize those who are otherwise acting legally.
  • Department of Justice / ISP Pilot Program:
    Section 3 outlines a program under which Internet Service Providers could pass on to consumers notices from the Justice Department alleging copyright infringement. There is concern that such a program would require ISPs to police their own networks on behalf of content companies—essentially requiring ISPs to assist in “fishing expeditions” against consumers and their own customers. Taxpayer dollars could be better spent on priorities other than notifications of possible copyright infringement.
  • Private Home Video Viewing:
    The original House version of this bill provided an affirmative right for those who used technology to skip objectionable material, such as profanity, violence, or other adult material, in the audio / video works that they legally purchased. This is a right that most believe manufacturers of technology and consumers already have—regardless of HR4077. The entertainment community has hijacked this provision and turned it against consumers and the tech community. Now, the affirmative right to watch and skip parts of the content that a consumer has legally obtained only exists if certain conditions are met: no commercial or promotional ads may be skipped. Additionally, technology manufacturers must provide a notice at the beginning each showing stating that “the motion picture is altered from the performance intended by the director or copyright holder of the motion picture.” This sets the functionality of the everyday VCR and TiVo on its head.
I could add some more details to some of these points, but this is a very bad bill. It might not be as bad as INDUCE, but it will do a number of bad things to copyright law and it should be stopped.

Category: Copyright

Chris Sinkler on October 8, 2004 10:37 PM writes...

I hope that the next generation is taught that freedom is precious and to never let anyone touch yours. Sometimes I fear that we will be put into such a control state that our children will not know what was once possible. Even the current batch of six-year-olds don't know. We need to teach them.

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Gregg Parks on October 9, 2004 03:04 PM writes...

I agree with Chris. My fourteen year old has become very jaded about all this (not just the issues of copyright. she has a vested interest in those because she builds websites). She told me recently that she is afraid to speak her mind in public out of fear. She wondered what would happen to her if she said the wrong things. Chris, let's not hope that the next generation is taught, let's teach them what it means to be able to have the freedom to think their own thoughts, put them together coherently, and speak them openly without fear.

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Mike on October 12, 2004 06:11 PM writes...

I wanted to go over to EFF to see what's there. Trouble is, EFF isn't there - it comes back with a 404 (not there). Whois shows it current, through Oct 2006.

Lessig makes a couple of good points:


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Anonymous on October 26, 2004 07:16 PM writes...


The phrase "which is by most artists register" should read "which is why most artists register"

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TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-pcorso.cgi/4932
Copyright Mashup from Copyfight Not the kind of mashup DJ Dangermouse is famous for. The kind Congress is infamous for. Meet the proposed end-of-the term substitute for H.R. 4077 (PDF) --a.k.a., PDEA Plus. Ernie has the scoop on what the PDEA is bad for.... [Read More]

Tracked on October 8, 2004 08:34 PM

"Piracy Deterrence in Education" bill from Library Autonomous Zone The Importance of... > Copyright Shenanigans Not Over in Congress - Piracy Education Act Dangerous" href="http://www.corante.com/importance/archives/026477.php">Copyright Shenanigans Not Over in Congress - Piracy Education Act Dangerous Ernest Miller,... [Read More]

Tracked on October 11, 2004 04:47 PM

Congressional Copyright Shenanigans Finished (For Now) from The Importance of... As noted here, Copyright Shenanigans Not Over in Congress - Piracy Education Act Dangerous, there was concern that a mishmash copyright law bill would come out of Congress near the end of this session. Thankfully, the proposed legislation did not... [Read More]

Tracked on October 12, 2004 04:20 AM

Killing digital viewing from Eternal Gaze: exploring advanced moving image Just as we are on the verge of space-shifting viewing (to go with the 'time-shifting' all but necessary now in a post-VCR era where we have multi-channel time-starved modern worklives), the Hollywood studios want to stop it. The flurry of proposals in ... [Read More]

Tracked on October 15, 2004 03:24 PM





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