Editorial: There Be Pirates! - Fixing Copyright Enforcement

Resident legal counsel, Patrick, tries to find a solution to the online piracy issue and makes a lot of sense while doing so. 

If you’re a media and entertainment nerd (and would you be reading this blog if you weren’t?) – you’ve likely noticed the news stories about piracy and copyright law that pop up every few months.  This month has been particularly active – with the Department of Commerce making some recommendations about the state of copyright law, self-proclaimed pirate groups weighing in on the discussion, and YouTube channels that are trying to “copyright” (not even the right area of Intellectual Property law, but that’s another rant for another time) concepts like reaction videos.

The Department of Commerce touched on several issues, one of which is based around the damages provisions of the Copyright Act, namely those massive statutory damages that can result when a judge finds them to be appropriate.  Breaking a million dollars in damages for downloading a single album intentionally?  That sort of nonsense has been made possible by statutory damages.  The real issue with damages like this is proportionality – how much harm was really done to an artist by a single (or even multiple) infringements?  Oddly enough, that’s a question that may be answered, or at least explored, by pirate group 3DM.  3DM vows to discontinue “cracking” (breaking the Digital Rights Management systems that prevent illegal downloading) single player PC games for the next year, in part to observe the effects on PC game sales.  While limited in scope, as other cracking groups will likely pick up the slack, this could potentially provide exciting insights into the effects of online piracy.

Copyright law is a pretty esoteric discipline, even those that practice law daily may never encounter it in their careers.  This is, in part, due to the very nature of the law itself – the very concept of “intellectual property” is something of an exercise in mental gymnastics.  Add in the virtual/physical/intangible nature of computers and the internet and you’ve got a pretty slippery concept.  Worst of all, ask a layperson to actually read the Copyright Act and it’s pretty unlikely to improve matters.  Intentional or not, it’s some pretty convoluted stuff.  Even at its most basic level – copyright infringement occurs when you make a copy of someone else’s work without permission.  When does a “copy” exist in a computer?  You could find out by reading some case law on the subject, but that’s an awful lot to expect of a layperson.  So instead you end up with a threatening e-mail from your ISP or, if you’re unlucky, a lawsuit claiming thousands of dollars in damages.  It’s messy, to say the least, and expensive for the system.  What if we could just simplify the whole thing?  This is the part where we need a little imagination.

Copyright law is fine when we’re talking about professional artists ripping off one another without permission, or in the case of widespread software piracy (selling bootleg copies of Windows, for example) but it falls apart in instances of individual infringers.  The system has embraced a fiction that an individual infringer somehow causes more damage than simply the lost sale of the infringed product.  Why perpetuate it?  What the copyright regime needs is a little simplicity and efficiency.  Allow copyright holders (movie studios, artists, video game producers, etc.) to bring a single action against all of the infringers in an area (probably a federal district, but that’s more specific than this article needs to be) and limit damages to the value of the infringed work plus a percentage to cover court costs.  Hell, allow infringers to simply pay the fine by mail or online, and eliminate the need for formal hearings. 

Treat infringement like the minor offense it often is, like skipping out on a toll booth, or failing to feed your parking meter.  Yes, copyright lawyers are expensive, so the process should be equally simple for the owner of the artistic material.  Allow an IP address to be sufficient evidence of identity for the fine – someone in your household downloaded the new episode of Game of Thrones?  Well, someone is going to pay HBO the $14.99 it would have cost to subscribe to HBO Now.  It wasn’t your family?  Someone must have used your WiFi from your backyard?  Maybe you should change your WiFi password from your address plus the name of your dog to something a little stronger.  Yes, yes, this is America, the justice system needs to be fair and honest – you’re absolutely right, just ask Steven Avery.  But when it comes to online piracy by individuals, it’s probably time to keep it simple, stupid and quit with the heavy artillery and bring out the slaps on the wrist.

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-Patrick B. McDonald