Congress Could Move to Expand DMCA

Michael Hayes
WASHINGTON — Despite calls from academics, technology companies and computer programmers for Congress to abandon the Digital Millennium Copyright Act, draft legislation expected soon proposes to expand the controversial law.

The Intellectual Property Protection Act of 2006, proposed by Rep. Lamar Smith, and supported by large copyright holders like the Recording Industry Association of America, represents a patchwork of different proposals designed to bolster the DMCA.

“The bill as a whole does a lot of good things,” Keith Kupferschmid, vice president for intellectual property and enforcement at the Software and Information Industry Association, said. “It gives the [Justice Department] the ability to do things to combat IP crime that they now can't presently do.”

One significant proposed change would be to create a new federal crime for attempted piracy. Under the proposal, even the mere attempt of trying to infringe upon copyright could carry a maximum of up to 10 years in prison.

Civil forfeiture penalties under the new law would permit computers used to commit piracy to be seized by private plaintiffs.

The bill also would amend the DMCA itself. While the DMCA prohibits trafficking in hardware or software that can be used to circumvent anti-piracy protections, the proposed change would expand the civil and criminal penalties for such violations while broadening the scope of illegal activity to include making, importing, obtain control of or possessing such tools.

“It's one degree more likely that mere communication about the means of accomplishing a hack would be subject to penalties,” Peter Jaszi, professor of copyright law at American University, said.

According to U.S. Attorney General Alberto Gonzales, the proposed changes are critical. In a November 2005 speech, Gonzales said that large-scale criminal enterprises were becoming involved in intellectual property theft. Gonzales went on to claim a link between the proceeds from such crimes and funding of terrorism activities.

Under the new bill the federal government would be allowed to use wiretaps to investigate copyright infringement, trade secret theft and economic espionage.

But, according to Kupferschmid, the new bill presents no real changes in the law.

“We really see this provision, as far as any changes to the DMCA go, as merely a housekeeping provision, not really a substantive change whatsoever,” Kupferschmid said. “They're really to just make the definition of trafficking consistent throughout the DMCA and other provisions within copyright law uniform.”