Download An MP3, Go To Jail For 3 Years. 

02-01-03 antiGUY
News.com columnist Declan McCullagh has dropped a real bombshell in his column last week when he covered the behind the scenes action surrounding a little known about law enacted under President Bill Clinton that makes swapping mp3’s a federal felony punishable by $250,000 in fines and up to three years in jail. 

The law called the No Electronic Theft (NET) Act was passed by Congress and signed by Bill Clinton in 1997 and to date federal prosecutors have used the law to prosecute file swappers in only a couple of cases. But that is about to change if a group of Congressmen and the RIAA have their way.

19 members of Congress wrote a letter to Attorney General John Ashcroft last July urging him to "to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer networks."  Sen. Joseph Biden, D-Del., Rep. James Sensenbrenner, R-Wis., and Sen. Dianne Feinstein, D-Calif were among the 19 politicians urging the Attorney General to start taking action against online file swappers due to their concern over the "staggering increase in the amount of intellectual property pirated over the Internet through peer-to-peer systems."

Deputy assistant attorney general, John Malcolm, who oversees the Justice Department’s copyright computer crime division responded to the letter assuring the Congressmen that Net Act prosecutions will begin shortly.  "There does have to be some kind of a public message that stealing is stealing is stealing," said Malcolm. 

While researching his story, Declan McCullagh, attempted to contact the Justice Department for a statement to explain why they have been slow to began prosecuting file swappers. The Justice Department did not reply to his request for a statement but a person close to RIAA told McCullagh that the trade group has had recent meetings with the Justice Department. 

The RIAA officially responded to McCullagh request for information and told him in a statement, “We are in constant communication with various law enforcement agencies about all forms of  piracy. It's illegal, and there clearly is an important role that law enforcement can play...It's important to remember that a 'Kazaa user' trafficking in copyrighted music without permission is doing something that is clearly illegal, as numerous courts have held that uploading and downloading copyrighted works without permission constitutes direct infringement. And it is well-established that copyright infringement can be a federal crime, so government enforcement seems perfectly appropriate."

The RIAA and Motion Pictures Association of America’s are in the middle of ongoing legal battle with companies that supply software that allows users to use Peer 2 Peer network to swap illegal computer copies of music and films. The largest target on their radar is the Australian company that distributes a P2P program called KaZaa and runs the computer network the program utilizes to proliferate file swapping among users.  KaZaa is fighting back by counter-suing a group of major record companies and film studios, claiming that those companies are monopolizing entertainment (see story). 

The RIAA won their legal battle against KaZaa’s predecessor Napster, a California company that was forced to close its doors following judgments from Federal courts that hampered their operations. 

The problem with going after the P2P software companies is the fact that as soon as they force one to shut down another one pops up to take its place. So it appears that the RIAA is now going to focus their legal guns of the file traders themselves and the NET Act gives them a strong arsenal to use in their war against file swapping. 

The NET Act was drafted by Rep. Bob Goodlatte, R-Va., the co-chairman of the Congressional Internet Caucus. News.com columnist Declan McCullagh communicated with the congressman via email and was told, "We would like to see more done to help guard against the wholesale violation of our copyright laws. We have helped secure additional funding for the Department of Justice to enforce the NET Act." 

According to McCullagh’s article, “The NET Act works in two ways: In general, violations are punishable by one year in prison, if the total value of the files exceeds $1,000; or, if the value tops $2,500, not more than five years in prison. Also, if someone logs on to a file-trading network and shares even one MP3 file without permission in ‘expectation’ that others will do the same, full criminal penalties kick in automatically.” 

McCullagh also reported that the law has already been used to prosecute illegal file swappers. “In 2001, a 21-year-old Michigan man named Brian Baltutat was successfully prosecuted under the NET Act for posting a mere 142 software programs on the ‘Hacker Hurricane’ Web site.” reports McCullagh. “Jason Spatafore, 25, pleaded guilty to posting just one movie on the Web—‘Star Wars: Episode I - The Phantom Menace’--in December 2000.”

It is possible that the next person who will be prosecuted under the NET Act could be a Verizon subscriber who the RIAA claims “illegally offered mp3 files of over 600 copyrighted songs to other users on the internet.” 

Last month a Federal Judge ordered Verizon to disclose to the RIAA the identity of the subscriber who was allegedly offering the large catalog of illegal mp3s to other Internet users. (see story

It is only a matter of time before the RIAA and MPA succeed in pressuring the Justice Department to use this obscure law to aid them in their battle against piracy.  You may not have heard of the NET Act before today but chances are good that in the coming months it will become as well known as other Federal laws like RICO. 

So if you are trafficking in illegal files on the Net, it would be wise to watch your back because the big guns are coming! 

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