S.1932, The ART Act

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Issues: 
Copyright

Introduced by Senators Cornyn and Feinstein, the expressed goals of the "Artists' Rights and Theft Protection Act of 2003" are to prevent pre-released and exclusively in-theater works from being "bootlegged." Public Knowledge has concerns, however, that the "ART Act" as currently drafted could place serious limits on citizens' rights.

Public Knowledge believes that its concerns could be resolved without doing harm to the goals of the ART Act if the following three changes are made:

  • Infringement Must Be Demonstrated -- Outlawing the act of making a work available on a computer network without having to show infringement fundamentally changes how traditional copyright law works. Public Knowledge is concerned that this 'making available' language sets a dangerous precedent.

  • Ensure Fair Use Defenses -- Copyright law ensures that for certain limited purposes (criticism, comment, teaching, research, etc), a citizen does not need the owner's permission to use a copyrighted work. Because pre-released works are afforded the same protection under copyright law, so should be the defenses of one who uses it.

  • Structure the Punishment to Fit the Crime -- As voiced by Senators in a recent Governmental Affairs hearing, there is an increasing concern that the punishment for infringement does not fit the crime. Putting questions of constitutionality aside, we find it troubling that the bill would "conclusively presume" a felony offense even in cases where no felonious level of infringement has occurred. The proposal to categorically classify any act of "making available" a felony is troubling as well. The felony / misdemeanor distinction in our criminal jurisprudence recognizes that not all crimes of the same type are of the same scale. This distinction should not be abandoned.

The first two concerns could be addressed by redrafting the pertinent provisions to fit within the Title 17, Section 506 scheme. This would ensure consumers' rights while protecting the interests of copyright holders. This preferred approach was taken in Section 301 of HR 2752, the Author, Consumer, and Computer Owner Protection and Security (ACCOPS) Act of 2003.