New draft legislation, supported by the Bush Administration and Representative Lamar Smith, would significantly expand the reach of the Digital Millennium Copyright Act (DMCA). Section 1201 of the Act, which in its current guise outlaws the use and trafficking of copy-protection circumvention tools, would be expanded in a number of ways.
First, the draft legislation uses language that is more expansive than 1201, outlawing all efforts to “make, import, export, obtain control of, or possess” circumvention technologies. While there is a heated debate about whether this change in language in anything more than cosmetic, it seems plausible to assume that the crime of “possession” could be used in contexts where the current variant of 1201 is toothless. For example, if a professor of computer science obtained a circumvention technology for the purpose of teaching her students how to architect a better DRM system, she could conceivable be prosecuted under the new DMCA.
Second, the legislation endorses wiretapping as a method of investigating copyright and trade secret crimes. Under this beefed-up DMCA, the FBI would house a copyright crimes investigation unit with a $20 million dollar budget to develop new, more effective forensics technology.
Third, the new DMCA dispenses with the registration requirements in § 411. Essentially, this means that copyright infringement claims could be brought without first registering the work with the Copyright Office.
Fourth, penalties under the 1997 No Electronic Theft Act are raised to 10 years from 5, and for repeat offenders from 10 to 20 years. This is an extremely disconcerting change, given that the NET Act renders noncommercial posting of copyrighted material on the web a crime, provided that the value of the material exceeds $1,000.
Fifth, the new DMCA would require violators to forfeit all of the assets used in connection with violating the Act. Investigators would also be able to impound virtually any records that might be helpful in prosecuting defendants. When coupled with the ability to wiretap alleged infringers, the right to impound records and impound computers would give the copyright crimes investigation unit an unprecedented degree of monitoring and enforcement power.