With the ongoing internet protests over the Stop Online Piracy Act’s (SOPA, H.R. 2631) provisions that many in the online community feel will lead to internet censorship, it is important to look at what new criminal penalties the law will create and whether or not these penalties will add to the already-significant problem of overcriminalization. The bill creates many new criminal laws for causes of action such as tortious interference and copyright infringement that have traditionally been left to civil law.

One of these provisions is section 201 of the bill, which states that “[a]ny person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18.” Section 2319 of title 18 allows for individuals to be imprisoned for up to five years for a first offense and up to ten years for a second offense. (A link to this section of the bill can be found here, and a link to section 2319 of title 18 here).

The bill also goes on to add large penalties in Section 202 for an individual who:

(i) intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,`(ii) intentionally traffics or attempts to traffic in labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature, knowing that a counterfeit mark has been applied thereto, the use of which is likely to cause confusion, to cause mistake, or to deceive, or`(iii) intentionally imports, exports, or traffics in counterfeit drugs or intentionally participates in or knowingly aids drug counterfeiting,

Penalties for this type of offense could include fines of up to two million dollars and ten years imprisonment.

Provisions like these are the reason many conservative groups such as The Heritage Foundation, and those on the left such as Nancy Pelosi are opposing the bill and its counterpart, the Protect Intellectual Property Act (PIPA), in the Senate. Critics fear that under the currently proposed language (especially the criminal penalties under the streaming provisions), an individual could be prosecuted for merely uploading a video of himself singing a copyrighted song on Youtube. Under a strict application of the law, Justin Bieber could land in prison.

While online piracy is indeed a serious problem and intellectual property should be reasonably safeguarded, there are free market solutions. For example, companies are developing software that will enable the private sector to better detect websites that engage in serial piracy of copyrighted content. These serial pirates can ultimately be put out of business through civil litigation or arbitration with the Internet Corporation for Assigned Names and Numbers (ICANN).

Right On Crime would also suggest that legislatures look to our checklist to analyze key factors before expanding federal criminal law that has already grown excessively to encompass more than 4,500 statutory offenses. Right On Crime encourages legislatures to use our checklist when drafting any anti-piracy statutes to: 1) ensure that new laws are truly necessary; 2) identify conduct that is better addressed in the civil law system; and 3) include an appropriate culpable mental state if a criminal penalty is truly necessary.

-Timothy Cook & Marc Levin