[Congressional Record Volume 149, Number 107 (Friday, July 18, 2003)]
[Extensions of Remarks]
[Pages E1506-E1507]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




THE AUTHOR, CONSUMER, AND COMPUTER OWNER PROTECTION AND SECURITY ACT OF 
                                  2003

                                 ______
                                 

                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                        Wednesday, July 16, 2003

  Mr. BERMAN. Mr. Speaker, today, I join Representative John Conyers, 
Jr. in introducing ``The Author, Consumer, and Computer Owner 
Protection and Security Act of 2003'' (ACCOPS Act).
  The ACCOPS Act addresses the growing scourge of illegal activity on 
the Internet. Illegal activities online run the gamut from identity 
theft, distribution of child pornography, and unlicensed drug sales to 
stalking, fraud, trademark counterfeiting, and financial crimes.
  Online copyright piracy, in particular, has gotten out of control. At 
any given moment, more than 4 million people are logged onto the single 
biggest peer to peer (P2P) file-swapping network, where they illegally 
traffic in over 850 million mostly-infringing files. P2P infringement 
of copyrighted music has garnered the most attention, but many other 
works, such as the latest Harry Potter book, are also widely infringed 
on P2P networks. On a daily basis, new web sites, with names such as 
Puretunes or Listen4ever, pop up offering

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unauthorized downloads of copyrighted works. Internet Relay Chat (IRC) 
channels and File Transfer Protocol (FTP) sites remain havens for theft 
of the newest software or pre-release movies. Chat rooms and other e-
groups designed for needlework hobbyists have morphed into unrepentant 
sources of copyrighted needlework infringement, with one Yahoo!-run 
group alone hosting almost 50,000 pages of copyright-infringing 
needlework designs.
  It might be argued that the breadth of illegal activity online merely 
reflects that found in the physical world. While that may be true, the 
online world presents unique challenges. The relative anonymity of the 
Internet, the technological savvy of some malefactors, and the sheer 
number of scams collectively make it difficult to investigate and 
prosecute many online illegalities. Further, current law does not, in 
some instances, adequately address the nature of these online 
illegalities, or take into account the novel techniques used in their 
commission.
  Law enforcement authorities need additional resources and statutory 
authority to effectively deal with this rash of online scams, crimes, 
and illegalities. Together with H.R. 2517, which Representative Conyers 
and I joined Representative Lamar Smith in introducing, the ACCOPS Act 
will go a long way to providing law enforcement with the tools they 
need.
  Title I of the ACCOPS Act is directed at providing law enforcement 
agencies with adequate resources and coordination authority to enforce 
the criminal copyright laws. Section 101 authorizes the appropriation 
of not less than $15 million for criminal copyright enforcement for 
fiscal year 2004. Section 102 requires the National Intellectual 
Property Law Enforcement Coordination Council (NIPLECC) to develop 
guidelines to ensure that its component members share amongst 
themselves law enforcement information related to infringement of U.S. 
copyrighted works. Section 103 enables Congress to better monitor the 
success of law enforcement efforts by requiring the Attorney General to 
submit biannual, instead of annual, reports on criminal copyright 
cases.

  Title 11 addresses the unique law enforcement challenges posed by the 
transnational character of online copyright infringement. With 
increasing frequency, investigators of online infringements find that 
the infringers are located outside the United States. Section 201 is 
designed to ensure that federal law enforcement agencies do everything 
in their power to pursue even foreign infringers. Section 201 requires 
the Attorney General to provide to a foreign authority evidence to 
assist such authority in determining whether a person has violated any 
of the copyright laws administered or enforced by the foreign 
authority, or in enforcing such foreign copyright laws. By ensuring the 
appropriate foreign authority will receive all relevant information and 
possible assistance on the case, Section 201 increases the likelihood 
that the foreign infringer will be prosecuted.
  Title III of the ACCOPS Act clarifies the application of criminal 
copyright laws in the online world, and creates a number of new federal 
offenses to deter a broad range of illegal activity online.
  Section 301 clarifies that the uploading of a single copyrighted work 
to a publicly accessible computer network meets the 10 copy, $2,500 
threshold for felonious copyright infringement. Section 301 simply 
brings the law into accord with the reality that uploading a 
copyrighted work to a place from which millions can download it is 
equivalent to the distribution of 10 or more copies having a value of 
$2,500 or more. This clarification is necessary because some 
prosecutors appear skeptical that they can successfully pursue cases 
against many uploaders of copyrighted works. Even though uploaders are 
the real culprits in the illegal distribution of copyrighted works, it 
is downloaders who make the vast majority of copies of the uploaded 
work.
  While Section 301 ensures that a public upload meets the felony 
threshold, the uploader will still only have criminal liability if he 
actually infringed the copyright in the uploaded work. More 
importantly, uploaders will only have criminal liability if they have 
infringed willfully. The standard for proving willfulness is quite 
high--requiring proving both knowledge and intent on behalf of the 
infringer--thus there is no threat that Section 301 will subject 
relatively innocent infringers to criminal liability.
  Section 302 addresses the problem of hackers, spammers, unscrupulous 
P2P software developers, and other online scam artists who have been 
known to ``hijack'' the personal computers (PCs) of the unsuspecting, 
and use those computers to engage in a variety of illegal or 
unauthorized activities. A July 12, 2003 New York Times article 
described how some PCs have been hijacked to distribute pornography. 
Several recent hearings in both the House and Senate detailed how 
popular peer-to-peer (P2P) software programs sometimes allow 3rd 
parties to ``hijack'' PCs to distribute child pornography and 
copyright-infringing material, come bundled with ``spyware,'' and 
otherwise jeopardize the privacy and security of PC owners.
  To address these problems, Section 302 requires that PC owners 
receive clear and conspicuous notice, and provide consent, prior to 
downloading software that would allow third parties to store material 
on the PC, or use that PC to search for material on other computers. 
Section 302 strikes a careful balance between ensuring that computer 
owners are fully informed, and empowered to deal with, the privacy and 
security risks inherent in some software, and preserving the freedom of 
software developers to innovate.
  Section 303 addresses another technique frequently used to facilitate 
Internet scams and illegal activities. Web sites are often used to 
undertake a variety of illegal activities. Web sites may pose as 
legitimate payment processors in order to steal financial information, 
offer copyright-infringing material for download, or sell non-FDA 
approved drugs. In an effort to escape detection, the operators of 
these sites often provide false or misleading contact information when 
registering the domain name of the web site. Over the past several 
Congresses, hearings before the Judiciary Subcommittee on Courts, the 
Internet, and Intellectual Property have highlighted this problem. Law 
enforcement agencies, the Federal Trade Commission, privacy protection 
organizations, and intellectual property rights holders have all 
documented the extent to which false domain name registration 
information substantially inhibited law enforcement investigations, 
consumer protection initiatives, privacy protection missions, and the 
exercise of intellectual property rights.
  Section 303 will address this problem by making it a federal offense 
to provide false contact information when registering a domain name. 
Section 303 makes it a Federal criminal offense to knowingly and with 
intent to defraud provide material and misleading false contact 
information to a domain name registrar, domain name registry, or other 
domain name registration authority in registering a domain name. The 
penalty is a fine, imprisonment for not more than 5 years, or both.
  Section 304 deals with the growing phenomenon of copyright thieves 
who use portable, digital video recorders to record movies off the 
screen in theaters. While not of pristine quality, once one 
``camcorded'' movie appears on the Internet, it quickly proliferates 
onto the P2P networks and back onto the street in the form of 
unprotected DVDs. Thus, even one camcorded movie can effectively defeat 
the best efforts of movie owners to protect their multimillion dollar 
investments against illegal distribution.
  Section 304 makes it a Federal criminal offense to, without 
authorization, camcord a movie in a theater. Section 304 mirrors 
legislation in several states, but will be far more effective by having 
a national impact.
  Section 305 is related to Section 303. When setting up web sites 
through which to infringe copyrighted works, the operators of those web 
sites often provide false domain name registration information. If 
their web site attract the attention of law enforcement or rights 
holders, the operators can then disconnect it without much fear of 
being caught, and pop up elsewhere under another domain name with 
different contact information.
  Section 305 directs courts to consider the knowing and intentional 
provision of material and misleading false contact information to a 
domain name registrar, domain name registry, or other domain name 
registration authority in registering a domain name as evidence of 
willfulness with regard to copyright infringements committed by the 
domain name registrant through the use of that domain name. While a 
prosecutor is already likely to proffer false domain registration 
information as indicative of willfulness, enactment of Section 305 will 
ensure that courts accord this evidence appropriate weight.
  In conclusion, I believe the ACCOPS Act, in combination with the 
previously-introduced H.R. 2517, will go a long way to stimulating and 
facilitating more effective investigation and prosecution of many 
online illegalities, most particularly criminal copyright 
infringements. I do not, however, claim that the ACCOPS Act is a 
perfect creation, nor that it contains every salutary proposal in this 
area. It may be that some further provisions need to be added, or some 
stricken. I do believe that it represents a positive step in the right 
direction, and will strongly advocate for its adoption.

                          ____________________