United States: The PIRATE Act: Should The Federal Government Be Responsible For Suing File Sharers?

The PIRATE Act is a bill introduced in Congress in May, 2004 by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont). The clever acronym stands for the full title of the Act which is the "Protecting Intellectual Rights Against Theft & Exploitation Act of 2004."¹ If enacted, it would amend the United States Copyright Act to make it easier for the federal government to take legal action against individuals using peer-to-peer (P2P) file sharing software such as Kazaa to commit copyright infringement. The bill authorizes the U.S. Attorney General to pursue civil copyright infringement cases against such file sharers. Under current law, while copyright owners can bring civil actions against infringers, the government is limited to criminal prosecutions which are rare.² According to Senator Leahy:

Although the PIRATE Act allows the U.S. Attorney General to pursue civil copyright infringement cases against file sharers, it does not in any way limit the existing rights of copyright owners from doing so as well. However, any monetary damages received by the copyright owner from a suit by the Attorney General would be offset or subtracted from the monetary damages awarded to the copyright owner in its own lawsuit.

The PIRATE Act also calls for an appropriation of $2 million to implement and carry out its provisions in 2005 and directs the Attorney General to develop a training program and pilot program for the Department of Justice to insure implementation of the Act. Training would include information on technological challenges to protecting digital copyrighted works from online piracy and collection of electronic data for use in lawsuits. Reflecting a balance between the rights of copyright owners and the public’s right to free access and to use copyrighted works in certain limited circumstances, such training would also include resources concerning legitimate uses of information and rights under the first amendment of the United States Constitution.

Finally, the PIRATE Act would require the Attorney General to make an annual report to Congress on the implementation and effectiveness of the Act. This report would include the number of civil suits filed, the number of persons sued, whether such suits resulted in settlement, dismissal or court judgement, and the amount of money awarded.

The PIRATE Act appears to be a recognition by at least some members of Congress that illegal file sharing of copyrighted works poses a serious threat to the entertainment industries (e.g., music, movie, computer software, etc.). Since these industries contribute substantially to the U.S. economy, Congress may have a legitimate concern with protecting them. Obviously, the various copyright industries are very supportive of this type of legislation since it would pass some of the burden of enforcing their rights to the government. Its also possible that some people might take the issue of copyright infringement more seriously if there was more active government participation in enforcement.

In addition to piracy, there are also concerns in Congress that file sharing services are playing a substantial role in the distribution of pornography. These concerns may have some merit as file sharing software is believed to be a large source of online pornographic material including illegal child pornography. According to Senator Hatch:

Not so coincidentally, two trade associations representing peer-to-peer file sharing companies recently announced that they will cooperate with the FBI in investigations of child pornography being distributed through P2P services.⁵ This announcement may indicate an ironic policy change for the file sharing companies which have consistently taken the position that they merely provide a way for people to share files and are not able to monitor what material is being shared by people using their software. If P2P services are able to monitor file sharing activity to regulate the sharing of files containing pornography, their argument that they cannot do so with respect to the sharing of files containing copyrighted works seems disingenuous. The P2P services’ motivation to cooperate in child pornography investigations may have more to do with the increased concern by Congress about the role of file sharing in distributing child pornography and the corresponding likelihood of legislation than it does about preventing children from being exposed to pornography since the P2P services had previously done nothing to limit the use of their services to distribute pornography or any other materials. For example, the commerce subcommittee has proposed a bill which would require file sharing companies to obtain parental permission before allowing minors to use their services.⁶ If enacted, this would likely have a substantial negative impact on file sharing companies since many parents might choose not to give permission due to their desire to prevent their children from being exposed to pornography as well as to avoid potential liability for copyright infringement. This could result in P2P services losing a significant percentage of their users since minors tend to be very active file sharers.

Critics of the PIRATE Act argue that the government should not be responsible for protecting the rights of copyright owners other than in criminal actions. They correctly point out that government enforcement of copyright law will ultimately be funded by taxpayers, and taxpayers shouldn’t have to foot the bill to protect the rights of copyright owners. Although in theory at least, this argument has great appeal since most taxpayers certainly wouldn’t be likely to want their money spent by the government to sue file sharers, it misses the mark in several respects. First, just because government enforcement of copyright has been limited to criminal actions in the past, there is nothing that prevents Congress from expanding the law to include civil actions. In other areas of law, the federal government can and does file civil lawsuits to protect the public interest or economic interests.⁷ Second, the lack of civil actions by the government does not necessarily mean that tax funds will not be used to enforce copyright law. The government could alternatively choose to file more criminal actions for copyright infringement. In the past, the government has filed few criminal actions for copyright infringement, probably due to several reasons (e.g., the higher burden of proof required for criminal as opposed to civil cases,⁸ the lack of federal prosecutors, and a greater focus on more serious crimes). If the government decided to bring more criminal copyright actions, this might very well be more costly for taxpayers due to the higher burden of proof that must be satisfied. Third, civil copyright infringement actions by copyright owners, although not paid for with tax dollars, are funded by consumers to the extent that copyright enforcement is a cost that is reflected in the price companies charge for their products.

Despite its critics, the PIRATE Act may reflect an intention by Congress to allow the government to enforce the copyright law, but in a manner that results in less serious consequences to violators than under criminal copyright prosecutions. If found guilty of criminal copyright infringement, violators could face imprisonment as well as fines. The prospect of imprisonment and a criminal record for illegal file sharing seems to be an overly harsh penalty. However, the PIRATE Act, by allowing civil copyright infringement claims to be brought by the government, provides a way to enforce the law, but with a much less harsh remedy.

Regardless of the merits or disadvantages of the PIRATE Act, it is unlikely that it will be enacted by Congress in the near future, if at all. Whether there is enough support for the bill in Congress is uncertain, especially considering that an abundance of organizations opposing any type of expansion of copyright protection are sure to lobby heavily against it. However, the bill’s existence, if nothing else, should reinforce the fact that file sharing of copyrighted works without the copyright owner’s permission is illegal and can subject individuals to civil and sometimes criminal liability.

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