Hey, you--the unindicted federal felon

COMMENTARY--If you've ever used a peer-to-peer network and swapped copyrighted files, chances are pretty good you're guilty of a federal felony.

It doesn't matter if you've forsworn Napster, uninstalled Kazaa and now are eagerly padding the record industry's bottom line by snapping up $15.99 CDs by the cartload.

Be warned--you're what prosecutors like to think of as an unindicted federal felon.

I'm not joking. A obscure law called the No Electronic Theft (NET) Act that former U.S. President Bill Clinton signed in 1997 makes peer-to-peer (P2P) pirates liable for $250,000 in fines and subject to prison terms of up to three years. (You may want to read it, since you'll likely be hearing more about it soon.)

That's a long time to spend cooling your heels in Club Fed.

Yet something strange is going on here. So far the Justice Department has made precisely zero prosecutions of peer-to-peer users under the NET Act.

This odd delay is not because peer-to-peer piracy is legal. It's not. The NET Act covers people who willfully participate in the "reproduction or distribution" of copyrighted works without permission, when that activity is not covered by fair use rights.

The law even grants copyright holders the right to hand a "victim impact statement" to the judge at your trial, meaning you can expect an appearance from the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA) or the Business Software Alliance (BSA), depending on what kind of files were on your hard drive. You'll no longer have it, of course, because it'll have been seized by the FBI, and you'll be in jail.

Fretting that not enough peer-to-peer pirates are already there, a band of congressmen asked Attorney General John Ashcroft last July to begin some NET Act prosecutions, pronto. Their letter complained of "a staggering increase in the amount of intellectual property pirated over the Internet through peer-to-peer systems." The 19 politicos--including Sen. Joseph Biden, D-Del., Rep. James Sensenbrenner, R-Wisc., and Sen. Dianne Feinstein, D-Calif.--urged Ashcroft "to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer neworks."

It didn't take long for the Justice Department to respond. A few weeks later, John Malcolm, a deputy assistant attorney general, said to expect some NET Act prosecutions. "There does have to be some kind of a public message that stealing is stealing is stealing," said Malcolm, who oversees the arm of the Justice Department that prosecutes copyright and computer crime cases.

Since then, however, there's been nothing but silence. The Justice Department has been tight-lipped about its plans, and did not reply to a request for comment on Friday.

Yet there are signs that prosecutions are coming soon. A person close to the RIAA told me there have been recent meetings with the Justice Department.

A second hint that pressure on the Justice Department is increasing lies in a statement of principles that the RIAA signed this month with the Computer Systems Policy Project and the BSA. The trio of groups say they want more "governmental enforcement actions against infringers."

For its part, the RIAA sent me a statement on Friday that seems to back that up: "We are in constant communication with various law enforcement agencies about all forms of piracy. It's illegal, and there clearly is an important role that law enforcement can play...It's important to remember that a 'Kazaa user' trafficking in copyrighted music without permission is doing something that is clearly illegal, as numerous courts have held that uploading and downloading copyrighted works without permission constitutes direct infringement. And it is well-established that copyright infringement can be a federal crime, so government enforcement seems perfectly appropriate."

Bob Kruger, BSA's vice president of enforcement, says his group is not actively lobbying for prosecutions of peer-to-peer users, but would not oppose them either. "Industry has an obligation to make law enforcement aware of the problems that beset it," Kruger said. "Congress has recognized that government enforcement efforts are part of the overall solution."

History of the law
Rampant file-swapping is precisely the activity that the NET Act was designed to punish. Rep. Bob Goodlatte, R-Va., the co-chairman of the Congressional Internet Caucus, drafted the law to close what had become known as the "LaMacchia Loophole."

In 1994, David LaMacchia was a junior at the Massachusetts Institute of Technology who was charged with wire fraud for creating a file-swapping site on the Internet. But a federal judge dismissed the criminal charges, ruling that although LaMacchia could be sued in civil court, he was not guilty as charged. "It is not clear that making criminals of a large number of consumers of computer software is a result that even the software industry would consider desirable," said U.S. District Judge Richard Stearns.

In an e-mail, Goodlatte said: "We would like to see more done to help guard against the wholesale violation of our copyright laws. We have helped secure additional funding for the Department of Justice to enforce the NET Act."

The NET Act works in two ways: In general, violations are punishable by one year in prison, if the total value of the files exceeds $1,000; or, if the value tops $2,500, not more than five years in prison. Also, if someone logs on to a file-trading network and shares even one MP3 file without permission in "expectation" that others will do the same, full criminal penalties kick in automatically.

"I'd imagine there are, at minimum, several thousand file-swappers meeting this definition," said Polk Wagner, who teaches copyright law at the University of Pennsylvania. To duck a conviction, said Polk, "you'd have to, in essence, prove you were an idiot. Not a problem for some, but a big problem for most file sharers, I suspect."

Jessica Litman, a professor at Wayne State University Law School, says achieving a conviction wouldn't be trivial for prosecutors. "For purposes of a criminal prosecution, you'd have to show more than that the defendant made the files available--you'd have to show that she actually made or distributed copies," Litman says. "Not too difficult using today's tools, but you would need to show the actual copying of the file by third parties ratter than merely proving that defendant downloaded the files into her share directory."

There already have been successful prosecutions under the NET Act of Web pirates--but not of peer-to-peer pirates.

In 2001, a 21-year-old Michigan man named Brian Baltutat was successfully prosecuted under the NET Act for posting a mere 142 software programs on the "Hacker Hurricane" Web site. Jason Spatafore, 25, pleaded guilty to posting just one movie on the Web--"Star Wars Episode I - The Phantom Menace"--in December 2000.

A quick check of Kazaa on Friday afternoon showed that there were 4.1 million users online, sharing some 800 million files. The odds of any specific person getting busted are pretty low, but someone's going to be a test case. Got your lawyer ready?

Declan McCullagh is the Washington correspondent for CNET News.com, chronicling the ever-busier intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired.