The U.S. Sentencing Commission on Wednesday approved an emergency set of rules that would boost prison sentences by roughly 40 percent for people convicted of peer-to-peer infringement of copyright works "being prepared for commercial distribution."
The changes also say judges may "estimate" the number of files shared for purposes of determining the appropriate fine and sentence. Larger numbers typically yield longer sentences.
Old federal definition of uploading: "Uploading" means making an infringing item available on the Internet or a similar electronic bulletin board with the intent to enable other persons to download or otherwise copy, or have access to, the infringing item.
New federal definition of uploading: "Uploading" means making an infringing item available on the Internet or a similar electronic bulletin board with the intent to enable other persons to (A) download or otherwise copy the infringing item; or (B) have access to the infringing item, including by storing the infringing item in an openly shared file.
Source: U.S. Sentencing Commission
This week's sentencing adjustments arose from a law that President Bush signed in April called the Family Entertainment and Copyright Act. It gave the commission 180 days to revisit its rules to make them "sufficiently stringent to deter, and adequately reflect the nature of, intellectual property rights crimes."
The law was supported by major media organizations, including the Motion Picture Association of America and the Recording Industry Association of America. It imposes fines of up to $250,000 and prison terms of up to three years, regardless of whether any downloading of a prerelease work took place.
Another change in the sentencing guidelines alters the definition of "uploading" to make it clear that merely having a copyright file available in a shared folder--such as those used by popular file-swapping programs like Kazaa and BearShare--can count as illegal distribution.
Fred von Lohmann, an attorney at the Electronic Frontier Foundation in San Francisco, warned that permitting courts to estimate the magnitude of a copyright infringement could prove problematic. "In civil copyright cases I would insist that the plaintiff prove the precise number of the works infringed," von Lohmann said. "It would be grossly unfair to let a court simply guess."
Under U.S. sentencing guidelines (PDF), the base offense level for uploading infringing files is 12 but can be reduced to 10 if it is noncommercial copyright infringement. The commission's emergency amendment adds two points to the offense level, boosting a typical sentence from six to 12 months to between 10 and 16 months if the person had no prior criminal history.
Last month, Curtis Salisbury, 19, pleaded guilty to violating the Family Entertainment and Copyright Act. Sentencing is scheduled to take place in a San Jose, Calif., federal court Feb. 27.
