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Reuters reported earlier this month that senior members of Congress are pressuring the US Department of Justice to put P2P file traders in federal prison.

Reuters reported earlier this month that senior members of Congress are pressuring the US Department of Justice to put peer to peer (P2P) file traders in federal prison.

The legislators are suggesting that law enforcement invoke an obscure law called the No Electronic Theft (NET) Act that was signed by then President Clinton in 1997. The NET Act makes it a federal crime for a person to share copies of copyrighted material with friends or even family members if the value of the work exceeds $US1000.

Violators of this law could be faced with a year-long prison sentence. If the value of the copyrighted work exceeds $US2500, file sharers could spend five years in federal prison.

The act provides that if a P2P user links to the network and shares copyrighted content in “expectation” that other users will do the same, the felony penalties are automatically triggered.

The Department of Justice has already used the NET Act to put those convicted of software piracy in prison and it is likely that the government will grant the request by some members of Congress to use this blunt legislative instrument against the millions of Americans who use file-trading sites.

The 19 members of Congress who signed a July 25 letter urging use of the NET Act included Joseph Biden, John Conyer, Howard Coble, James Sensenbrenner and Dianne Feinstein, my own clueless con-gresswoman.

The letter urged Attorney General John Ashcroft “to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer networks”.

The letter complains “[that there is] a staggering increase in the amount of intellectual property pirated over the internet through peer-to-peer systems”. It even suggests that prosecuting file traders is central to the very fabric of America. “Such an effort is increasingly important as on-line theft of our nation’s creative works is a growing threat to our culture and economy,” the letter reads.

The buzz at the Usenix Computer Security conference which met in San Francisco earlier this month is that software tags on the Microsoft Word file that contained the letter indicated that it was generated by the Recording Industry Association of American (RIAA), which has prosecuted the operators of several P2P networks.

This may or may not be true. But a look at the campaign contributions to these legislators from the movie and recording industry indicates how much it takes these days to purchase a Congressman to further your agenda — even if many Americans do not consider file trading a crime for which you should do time in a federal pen. “There is no doubt, mass copying off the internet is illegal and deserves to be a high priority for the Department of Justice,” says RIAA chairman Hilary Rosen in a statement.

The NET Act was drafted by Bob Goodlatte, to plug what has become known as the “LaMacchia Loophole”. This is named for David LaMacchia, an MIT student who was charged in 1994 with wire fraud for creating a file-swapping site on the internet. A federal judge ruled that LaMacchia could be sued in civil court, but he was not guilty of a crime. In his measured ruling, US District Judge Richard Stearns wrote, “It is not clear that making criminals of a large number of consumers of computer software is a result that even the software industry would consider desirable.”

I doubt that the entertainment industry would ultimately find it very desirable if many thousands of their consumers, particularly young people, became federal felons and go to jail as a result of the NET Act. It would anger and alienate a large portion of their market. It would create a parallel culture of material that could be freely shared. And it would do nothing to stop file trading out of the reach of US jurisdiction. If the feds went after the operators of the large US-based nodes first, they would simply move offshore.

Harrison writes for Network World US.

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