File Traders Face Jail Time, Fines with California Law

Internet civil libertarians are raising red flags over parallel bills in the California state legislature that would punish file traders of copyrighted materials with up to a year in jail, US$2,500 in fines or both if the users do not provide their real names and addresses with the title of the work.

A California State Senate bill introduced by Sen. Kevin Murray (D-Los Angeles) -- the same lawmaker who authored and promoted California's spam law that punishes illegal spammers with up to $1 million in fines per incident -- and a corresponding California Assembly bill from Kevin McCarthy (R-Bakersfield) both would impose the penalties on Internet users who share commercial recordings or audiovisual work electronically.

Electronic Frontier Foundation legal director Cindy Cohn said the bills -- which she described as "incredibly corrosive to basic privacy and security" -- would require even children to offer their names and addresses to share something that might arguably be fair use of a copyrighted work.

"The bills are essentially trying to create criminal liability for sharing even a single commercial audio or visual work on the state level -- something that was denied on the federal level," Cohn told TechNewsWorld.

Painful P2P Penalties

Cohn indicated the biggest concerns about the legislation center on its harsh penalties and its potential effect on anonymity, which historically has been preserved on the Internet.

"As a society, do we really want to give people a year in prison for sharing a single song?" she asked.

Cohn added that the bills are "counterproductive to privacy" in their requirement for users, including children, to share real names and addresses. She said the bills contradict policy goals designed to prevent the growing problems associated with identity theft, spam and protection of children's identities.

"All of the other customs and precedents on the Internet go the other direction," she said. "Here, California is mandating that minors provide [names and addresses]."

Natural Extension of Law

Both bills are sponsored by the Motion Picture Association of America (MPAA), which contends that storing of a copyrighted work on a shared hard drive is the same thing as theft of a DVD from a brick-and-mortar store.

The movie industry group also claims the legislation is a normal state-level legal supplement to federal copyright law, which prohibits electronic sharing of protected works.

"This is a natural extension of what's on the books for hard goods -- DVDs and videocassettes -- in virtually every state," MPAA senior vice president of state legislative affairs Vans Stevenson told TechNewsWorld.

Failing Business Model

However, critics of such legislation and of the music, movie and entertainment industries' legal efforts to crack down on peer-to-peer (P2P) Internet file-trading sites and services repeatedly have pointed to U.S. and other court rulings that have found them to be legal.

Cohn said "fair use" allowances for sharing copyrighted materials -- such as a parody -- are in jeopardy because of the proposed California legislation.

The MPAA's Stevenson took issue with the idea of fair use as a right, telling TechNewsWorld that it is only a defense against charges of copyright infringement. "I can bring a case against anybody," he said.

Cohn -- who questioned the need for such legislation when copyright holders such as the Recording Industry Association of America (RIAA) claim their lawsuits against individual file traders are working -- said the real copyright issue lies in the entertainment industry's effort to hold on to its old way of doing business.

"The problem is that the entertainment companies are trying to force a rejected business model down the throats of their fans," she said. "The realistic thing is people aren't going to abide by this law, and then, suddenly, everyone will be a criminal."