Because We Didn’t Have Enough Copyright Legislation Already

22:42 Tue 14 Oct 2008. Updated: 17:30 28 Jan 2009
[, ]

President Bush signed the “Pro-IP” Act yesterday, because despite everything else that’s going on, there’s still plenty of time to please the RIAA and MPAA by increasing statutory damages for infringers—apparently up from a capped $150,000 for a ten-song album to $1.5 million.

My view on this is clearly biased, since I view the criminalization of not-for-profit copyright infringement as essentially criminalizing sharing. I’m not at all convinced that creators benefit from these laws, apart from perhaps a very small class of extraordinarily-successful ones—and those are the ones that obviously need the least protection.

Leaving my views on sharing aside, however, many problems remain here. I’m not in favor of having the state enforce criminal penalties against not-for-profit infringement (as was originally part of the bill in question), but the fact that it’s in the civil arena means that there are huge disparities in who can use this to their benefit. Small creators who get ripped off by larger organizations are likely to be out-lawyered, whereas the large organizations can victimize allegedly-infringing individuals—which, of course, is what the RIAA has already been doing. But now they can threaten those individuals with far more damages than was previously the case.

Perhaps the increase in statutory damages will encourage a new breed of lawyer, cousin to the stereotype of the ambulance-chaser—this kind of lawyer will seek out minor infringement cases and seek to extract massive damage awards from them. Somehow that doesn’t seem like a good thing for society.

This is connected to another major problem with the legislation, and with infringement penalties in general: infringement is ubiquitous. Really. The copyright laws are so broad, and have very few exceptions to account for technological change, that vast swathes of the population engage in “infringement” on a daily basis. When almost the entire populace is engaged in infringing activity (many probably without being aware of it), massive damages for infringement become threats hanging over the head of every individual, and the big copyright holders are thereby granted an awful lot of power.

Ars Technica’s recent article about the dubious numbers often cited in support of ever-more-draconian measures is worth reading.

Incidentally, this went through the Senate with no opposition. Not one Senator felt it was worth their while to protest the over-the-top nature of this bill—or the fact that at $2/taxpayer/year, it is essentially charging the American public for the right to be sued into oblivion by major copyright holders.

Leave a Reply