Donna reports that the PDEA has passed through the House. Among many fine points, she notes the lack of debate on this issue.
The bill itself lists many “findings” about the state of piracy and that it must be counteracted, but there seems to have been no research regarding whether heightened criminal enforcement under lower standards would be beneficial. Much the same can be said for the Pirate Act’s allowing the feds to go after infringers as a civil offense. No one at the hearing even thought to compare the war on piracy to the war on drugs. Moreover, on a more concrete level, there’s not even the most rudimentary evidence regarding whether these prosecutions and lawsuits would have any practical impact.
Consider: as enforcement increases, more users will turn to more secretive systems that employ encryption and proxy servers. They will also turn to trusted small worlds networks, which, when linked together, may be just as powerful (particularly for popular content) as the current networks. Looking at the current civil suits, enforcement seems to make little noticeable difference to traffic on the file-sharing networks.
Congress could have done research on all these fronts and tried to more clearly demonstrate how criminal prosecutions and employing powers of the state (e.g., how do the privacy protections interact with wiretapping?) might affect matters, but it doesn’t seem like they have. Certainly, they can assume that heightened penalties may provide some piracy reduction. The question is: what is the net benefit? Even setting aside the sort of cultural costs of turning millions into criminals, both the PDEA and Pirate Act involve large sums that must be spent on training and employing the feds. As some pointed out, that money could be spent on more worthwhile enforcement in other areas of the law. From what I’ve seen, they have not clearly demonstrated that the benefits of enforcement will outweigh these costs.