Conservative Senator Orrin Hatch (R – UT) has frequently cast aspersions on sexually offensive broadcast programming. For example, see his recent comments regarding the current brouhaha over indecency on television (Hatch Decries Declining Morals on Broadcast TV). Yet, the logic of his statements on behalf of the recently introduced “Protecting Intellectual Rights Against Theft and Expropriation Act” (PIRATE Act) would have the Department of Justice lawyers working on behalf of pornographers. In Hatch’s world, the FCC would work to crackdown on indecency while the DOJ fought on behalf of pornographer’s rights.


Xeni Jardin of WIRED was, I believe, the first traditional journalist to write about the bill (Congress Moves to Criminalize P2P).

The essentials of the bill are actually quite straight forward. Instead of being required to bring only criminal copyright infringement prosecutions, the Act would permit the DOJ to bring civil copyright infringement lawsuits against copyright scofflaws. The bill does not change the standards for triggering DOJ concern under 18 USC 506 (basically, willful infringement for commercial advantage or a lot of willful infringement for no gain). The bill also establishes a pilot/training program and requires an annual report from the DOJ. Up to $2,000,000 may be allocated for the program.

There is one other important aspect of the bill. Once a copyright infringer has been busted by the DOJ and forced to pay a fine, the copyright owner can still sue the infringer for more damages. With a successful federal prosecution in hand, such a lawsuit would be a slam-dunk. Until the statute of limitations runs out (generally three years), a government-busted infringer is basically at the mercy of the copyright owner, who could likely bankrupt them on a whim. The only limitation on this is that any restitution payed due to the DOJ lawsuit would reduce or “offset” any subsequent civil action penalty. With a minimum penalty of $750 per infringement (and up to $150,000), this still leaves a major sword hanging over the head of DOJ-busted infringers.

Analysis and Commentary

Joe Gratz is absolutely right when he says this proposed act is simply rent-seeking (RIAA’s Next Step: A $2 Million Gift From Taxpayers):

[The Act] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.

Furdlog points out another cost of the Act; let’s call it an “opportunity cost” (OK, That’s It):

Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?

This theme is continued in the Washington Post (reg. req.) (‘Pirate’ Bill Aims Law at Song Swappers). Fred von Lohmann of EFF is quoted as saying, “The drumbeat here is that the entertainment industry would really appreciate it if the DOJ would do their dirty work for them.” This is also a cost that can’t be calculated in dollar bills. So far, the RIAA hasn’t actually gone to trial. You can be sure when they do, the publicity won’t be pretty. How much better for some AG to take some of the public heat, while the RIAA gets the deterrence benefit.

Speaking of the RIAA, co-Copyfighter Donna Wentworth points out the hypocrisy of the copyright industry’s support for the bill (Funding the War on Filesharing):

Okay–so the recording industry rejects voluntary collective licensing, implying that it’s a compulsory system and therefore tantamount to the dreaded government solution to a private sector problem. Yet it supports the PIRATE Act–a government solution that would have taxpayers paying for lawsuits, not music.

Speaking of hypocrisy, well, not exactly, we come to the part of this posting in which I explain how Sen. Hatch becomes the pornographer’s best friend.

Hatch and Pornography

Sen. Hatch and Sen. Leahy (D – VT) are co-sponsors of the bill in the Senate and both had press releases trumpting how well they’ve done what Hollywood requested of them. See Leahy’s press release here: Leahy-Hatch Bill Takes Aim At Copyright Infringement. However, I found Sen. Hatch’s press release more entertaining: Hatch Continues to Fight Against Copyright Infringement.

Unlike Leahy’s press release, which focuses solely on copyright infringement, Hatch’s discussion reveals a strange obsession with pornography on P2P networks:

Unscrupulous corporations could distribute to children and students a “piracy machine” designed to tempt them to engage in copyright piracy or pornography distribution.

Unfortunately, piracy and pornography could then become the cornerstones of a “business model.” At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become “human shields” against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.


Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as “human shields” against law enforcement.

My first thought was, “I’m surprised Hatch didn’t pull a Gen. Jack D. Ripper imitation and start calling for protecting the precious purity of our children’s bodily fluids.” My second thought was, “does Hatch know what he is saying?”

Perhaps Hatch doesn’t realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch’s goals at once: reducing infringement and pornography redistribution.

Titan Media, a producer of gay pornography, is well-known for its aggressive copyright infringement actions (Titan Media Pumped-Up over digital distribution). I’m sure that they would be more than happy to cooperate and coordinate with DOJ lawyers to stop piracy of their products. How proud Hatch will be when the first DOJ-acquired restitution checks are turned over to purveyors of smut.

Hatch and Titan Media in agreement at last.

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