Gonzales Seeks Harsher Criminal Copyright Infringement Standards

By Eric Goldman

CNET reports that Atty. Gen. Gonzales has proposed new amendments to criminal copyright infringement, including:

* criminalizing the “attempt” to infringe

* requiring criminal defendants to pay “other victims of the offense” in addition to the copyright owner

* giving the DOJ the right to enforce unregistered copyrights

(I haven’t seen a copy of the proposal; please let me know if you’ve seen it). [see below for URL]

The stated rationales include easing prosecutors’ burdens and, of course, the typical innuendo that copyright infringers are linked to and support terrorism. [see Brett Frischmann's gripe about the innuendo]

I continue to find these requests for tougher criminal copyright infringement laws bewildering from a policy standpoint. We have a high degree of confidence that increased criminalization will not affect behavior. Prosecutors already have ample discretion. The DOJ already is having plenty of “success” throwing warez traders and other non-commercial infringers in jail. Copyright owners like the RIAA have plenty of leverage in their civil lawsuits. So what’s broken that needs to be fixed?

In partially-related news, last month the Sentencing Commission issued “emergency” guidelines to implement the ART Act prohibition on making a copyrighted work publicly accessible. (Declan’s story). The emergency guidelines are pretty standard fare for the IP guidelines, but one provision isn’t. The emergency guidelines say:

“(E) Indeterminate Number of Infringing Items.—In a case in which the court cannot determine the number of infringing items, the court need only make a reasonable estimate of the infringement amount using any relevant information, including financial records.”

I’m not a criminal law expert, but this seems to completely ignore the Supreme Court’s basis for attacking the sentencing guidelines in the Booker case. Here, the Sentencing Commission is telling judges to accept a sentencing-related fact without the government having proved the fact beyond a reasonable doubt. Accordingly, this guideline seems particularly questionable. It should also work to the disadvantage of warez traders, where evidence problems have helped keep sentences comparatively moderate. If estimates of infringement suffice, the potential quantum of infringements attributed to warez traders could skyrocket.

I’ve addressed the subject of criminal copyright laws repeatedly. I also engaged in a lengthy critique of the subject in my Road to No Warez paper.

UPDATE: The proposed law and Public Knowledge’s comments.