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.
Like this legal piece? Please share.
Like this legal piece? Please share.
-Patrick B. McDonald