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P2P pirates face more time in the slammer
Sentencing judges can "estimate" the number of files shared...

By Declan McCullagh

Published: Friday 21 October 2005

Internet pirates with pre-release movies in their shared folders will face stiffer federal penalties starting on Monday.

The US Sentencing Commission on Wednesday approved an emergency set of rules that would boost prison sentences by roughly 40 per cent 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.

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 organisations, 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 pre-release 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 BearShare and Kazaa - 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," he said. "It would be grossly unfair to let a court simply guess."

Under US sentencing guidelines (PDF), the base offence level for uploading infringing files is 12 but can be reduced to 10 if it is non-commercial copyright infringement. The commission's emergency amendment adds two points to the offence 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, California, federal court on 27 February.

Declan McCullagh writes for CNET News.com