TLJ News from May 26-31, 2011

Sen. Leahy Introduces Bill to Extend Mueller's Term

5/26. Sen. Patrick Leahy (D-VT) and others introduced S 1103 [LOC | WW], an untitled bill to extend the term of Federal Bureau of Investigation (FBI) Director Robert Mueller by two years.

By statute, FBI Directors are appointed by the President, and confirmed by the Senate for one ten year term, and "may not serve more than one ten-year term". See, 28 U.S.C. § 532 note.

S 1103 is a short but carefully worded bill that would extend Mueller's term to twelve years. All subsequent Directors would have ten year terms.

Mueller (at left) began service on September 4, 2001. He was appointed by a Republican President, and confirmed by a vote of 98-0. See, Roll Call No. 272 (107th Congress, 1st Session).

President Obama requested this extension. See, story titled "Obama Wants to Extend Mueller's Term" in TLJ Daily E-Mail Alert No. 2,240, May 13, 2011.

The Obama administration's policies are indistinguishable from the Bush administration's policies in a number of areas, including the USA PATRIOT Act's expansion or FISA powers, wiretaps, seizure of email, access to cloud stored records, CALEA, the state secrets doctrine, and other electronic surveillance related matters. Allowing President Obama's request to extend Mueller's tenure would facilitate ongoing continuity in policy.

Section 1101 of the Omnibus Crime Control and Safe Streets Act of 1968 (Public Law No. 90-351) provided that when the then FBI Director J. Edgar Hoover ceased service, subsequent FBI Directors would be limited to one ten year term. Hoover died in office in 1972.

Since then, no FBI Director has served his entire ten year term, although Louis Freeh and William Webster came close.

Post Hoover FBI Directors
Thomas Pickard acting June 25, 2001 - Sept. 4, 2001
Louis Freeh   Sept. 1, 1993 - June 25, 2001
Floyd Clarke acting July 19, 1993 - Sept. 1, 1993
William Sessions   Nov. 2, 1987 - July 19, 1993
John Otto acting May 26, 1987 - Nov. 2, 1987
William Webster   Feb. 23, 1978 - May 25, 1987
James Adams acting Feb. 15, 1978 - Feb. 23, 1978
Clarence Kelley   July 9, 1973 - Feb. 15, 1978
William Ruckelshaus acting April 30, 1973 - July 9, 1973
Patrick Gray acting May 3, 1972 - April 27, 1973

Subsection (b) of the statute limits the FBI Director's term to ten years. This bill would amend the statute by adding an additional subsection (c) that provides as follows:

"With respect to the individual who is the incumbent in the office of the Director of the Federal Bureau of Investigation on the date of enactment of this subsection--
  (1) subsection (b) shall be applied--
    (A) in the first sentence, by substituting `12 years´ for `ten years´; and
    (B) in the second sentence, by substituting `12-year term´ for `10-year´ term; and
  (2) the third sentence of subsection (b) shall not apply."

Sen. Leahy, who is the Chairman of the Senate Judiciary Committee (SJC), stated that President Obama, and not Mueller, requested this extension. Sen. Leahy also praised Mueller's service, and noted that extension of his term enjoys the support of Republicans, including Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee (HJC).

The SJC's agenda for its executive business meeting of June 9, 2011, lists consideration of S 1103. The SJC will hold a hearing on this matter on June 8, 2011.

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, is an original cosponsor of this bill. He stated in the Senate that Mueller's term should be extended, and that he "has done an admirable job of reforming an agency under difficult circumstances". However, he proceeded to excoriate the FBI. See, Congressional Record, May 26, 2011, at Pages S3437-8.

Sen. Grassley said that "the FBI has also had its share of failures. These include maintaining secret files on elected officials, the investigation of civil rights leaders, the tragedies at Ruby Ridge and Waco, missing internal spy Robert Hanssen, the corruption and misuse of mob informants in the Boston field office, and the failure to connect the dots leading up to the 9/11 attacks. The FBI has also had problems in failing to manage high-profile projects, such as the procurement of information technology upgrades. They have failed to address personnel problems, such as the double standard for discipline that the Justice Department inspector general found agents believe exists. And there were the serious issues that required reform at the FBI crime lab. These are black marks on the history of the FBI."

He also referenced the FBI's "unwillingness to own up to mistakes. Too often, officials sought to protect the agency's reputation at the expense of the truth. My concerns are magnified by the way the FBI treats internal whistleblowers who come forward and report fraud and abuse. All too often, instead of owning up to problems and fixing them, they circle the wagons and shoot the messenger. The FBI is all too often the exact opposite of an agency that can accept constructive criticism, from both those inside and out."

Sen. Saxby Chambliss (R-GA) and Rep. Dianne Feinstein (D-CA) are also original cosponsors of the bill.

Sen. Klobuchar Introduces Bill to Toughen Criminal Copyright Penalties

5/26. On May 12, 2011, Sen. Amy Klobuchar (D-MN) and others introduced S 978 [LOC | WW], an untitled bill to amend 18 U.S.C. § 2319 and 17 U.S.C. § 506 to toughen penalties for criminal copyright infringement by streaming.

The statute already provides a maximum five year sentence for those who commercially provide infringing works via internet downloading. This bill would also provide a maximum five year sentence for those who provide infringing works by streaming. Currently, infringement by streaming is subject to a maximum sentence of one year.

On March 15, 2011, Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, offered twenty legislative recommendations to Congress regarding intellectual property law. It proposed the change that is contained in this bill. Although, this bill provides more specific language.

Espinel's report recommended this. "Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony". See also, story titled "Espinel Offers 20 IP Legislative Recommendations" in TLJ Daily E-Mail Alert No. 2,212, March 30, 2011.

The Independent Film & Television Alliance (IFTA), Motion Picture Association of America (MPAA), and National Association of Theatre Owners (NATO) issued a release in which they praised this bill. See also, release of the Recording Industry Association of America (RIAA).

Sandra Aistars of the Copyright Alliance stated in a release that this bill "would make the illegal streaming of copyrighted works a felony, the same penalty as uploading or downloading infringing files. With the growth in popularity of streaming content, especially live content, this legislation represents a logical and positive step toward combating the overall problem of online infringement."

The Senate Judiciary Committee's (SJC) agenda for its executive business meeting of June 9, 2011, lists consideration of S 1103. It was on the agenda for the SJC's May 26 meeting, but was held over.

The two original cosponsors of this bill are Sen. Christopher Coons (D-DE) and Sen. John Cornyn (R-TX).

Bill Summary. 17 U.S.C. § 506 is the Copyright Act's section that pertains to "Criminal Offenses". It provides, in part, that "Any person who willfully infringes a copyright shall be punished as provided under" 18 U.S.C. § 2319.

18 U.S.C. § 2319 is the section of the Criminal Code titled "Criminal Infringement of a Copyright". Subsection 2319(b) sets the maximum prison terms for violation of 17 U.S.C. § 506. Subsection 2319(b)(3) sets the basic rule -- one year maximum, and misdemeanor status. Subsections 2319(b)(1) and (2) provide for higher maximums, and felony status, under two sets of circumstances.

Subsection 2319(b)(2) provides for a maximum sentence of ten years if the offense is a felony, and its is the defendant's second criminal copyright offense.

Subsection 2319(b)(1) provides for a maximum sentence of five years "if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500". Notably, this does not include "public performance" or "streaming".

This bill would set a five year maximum sentence for another set of circumstances, involving "public performances", if`"(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and (B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or (ii) the total fair market value of licenses to offer performances of those works would exceed $5,000".

This bill would also amend subsection 2319(f), which contains definitions. It provides that "public performance" refers back to the exclusive rights of copyright codified at 17 U.S.C. § 106(4) and (6). That is, "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following ... (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly ... (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission". Currently, subsection 2319(f) only refers to "reproduction" and "distribution", and subsection 106(1) and (3), which codify exclusive rights to reproduce and distribute.

The bill would also add references to public performance in 17 U.S.C. § 506.

17 U.S.C. § 101 contains definitions for the Copyright Act. It defines both "perform" and "publicly". The latter includes "to transmit or otherwise communicate a performance or display of the work ... by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times".

In sum, while this bill does not use the colloquial term "streaming", it uses the legal term "public performances by electronic means", which encompasses the concept of streaming.

Go to News from May 21-25, 2011.