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Attempted Crimes and Linking

By William Patry

On May 17, 2007, I did a posting on a proposal to make it a crime to engage in attempted copyright infringement. Nothing came of the proposal, blessedly. However, this Congress, H.R. 4128, introduced on November 8, 2007, and called the ?Criminal Code Modernization and Simplification Act of 2007, has the following provision in Section 6:

Sec. 6. Attempt

`(a) GENERAL RULE- Unless otherwise provided by law, whoever attempts to commit an offense shall be punished as is provided for the completed offense.

`(b) EXCEPTIONS- Subsection (a) does not apply to any provision that specifically exempts itself from the application of this section.

The way this works is that Congress must expressly state there is not an attempt offense; otherwise there is. In Section 676 of the bill there are provisions on criminal copyright, based on existing law, but no exclusion for attempted infringement. H.R. 4128 thus accomplishes by ?opt-out? what the prior proposal could not by the usual amendment route.

What might and attempted crime look like on the Internet? Those who are up in arms about the making available right have seen nothing. The Iconoclast blog by Declan McCullagh has a current example, in a posting from March 20, about how the FBI has been using fake hyperlinks to catch child porn suspects, with court approval. There is an embedded audio podcast of the story on the blog.

As the father of 6-year twins, I believe in a mandatory death penalty for those involved in child pornography due to the heinous nature of the crime and the very high recidivist rate. At the same time, as applied to copyright, with a new ?attempt crime,? it would not be a stretch to see the FBI set up the same type of sting for file sharing.

Full post as published by The Patry Copyright Blog on March 24, 2008 (boomark / email).