While IP owners have rights, copyright enforcement has left behind a trail of death, destitution and defamation
When harsh enforcement tactics drive ordinary individuals to suicide or bankruptcy, something has gone very wrong
Digital Consumers by Dr Jeremy Malcolm
COPYRIGHT enforcement ought to be about going after those who profiteer from the work of others by dealing in pirated goods, and about protecting consumers from sub-standard fakes.
Instead, the industries pushing for tougher copyright enforcement have become fixated on controlling the behavior of ordinary consumers.
In fact it is no exaggeration to say that in its worst excesses, the copyright enforcement juggernaut can be characterized as dedicated to ruining the lives of everyday consumers and individual creators – leaving behind it a trail of death, destitution and defamation of character.
Perhaps this seems like an overly harsh and emotional critique, but it is one today shared by a large community of Internet activists as they continue to mourn the suicide of Aaron Swartz (pic) recently, a month before his trial on charges which placed him at risk of up to 35 years in jail and fines running into the millions.
All this for freeing 4.8 million academic articles – the majority of them already paid for by public research funding – from the paywall of the JSTOR repository, so that they could be accessed by all.
Tragically, Aaron was not the first casualty of an out-of-control copyright enforcement regime, or even the first in the past year. In April 2012 Greg Ham, saxophonist for the Australian rock group Men at Work was found dead at his home, having sunk into a deep depression following a copyright court judgment against him.
The court had ruled in 2010 that a short flute riff Greg had improvised in the Men at Work hit Land Down Under had actually been lifted from a 1934 Australian nursery rhyme, Kookaburra Sits in the Old Gum Tree.
On one level, the cases aren't really comparable: Greg's case was a civil lawsuit over musical quotation (a practice common to composers from Mozart to Dylan); Aaron's was a criminal prosecution over the reproduction of journal articles, and based on a cybercrime law rather than a copyright law.
Even so, each case turned on the characterization of the sharing of information and culture as “theft” – a metaphor that the new generation of consumers roundly rejects.
Under American copyright law, copyright owners can seek an award of statutory damages against an infringer, even when they can't prove that they actually suffered any loss. This amounts to up to US$30,000, or if the infringement is shown to have been willful; as high as US$150,000, for each and every work in which copyright was infringed.
Since a “work” in this case can be just a single song, sharing an album's worth of songs online can render you liable to astronomical sums, such as the US$1.92 million judgment that single mother Jammie Thomas-Rasset faced in 2009 for sharing 24 songs. Through a series of appeals the damages award has fluctuated up and down, and it currently stands at “only” US$222,000.
Similarly, Joel Tenenbaum who shared 31 songs faces a US$675,000 award. The mind boggles.
Regrettably, the United States is not alone in this madness. Last year, Malaysia quietly adopted its own statutory damages penalties for copyright infringement. For sharing the same number of songs that Jammie or Joel did, Malaysians could be liable to half a million ringgit in statutory damages, in addition to any actual damages or profits that the plaintiff can prove.
Even the judges called upon to mete out these crazy penalties acknowledge that something is seriously wrong. In Joel's case, Judge Nancy Gertner wrote:
As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges — no, implores — Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood.
Defamation of character
When Norwegian journalist Andreas Ødegård loaded up a dictionary application on his iPad one day last year, it prompted him to provide his Twitter account details, without explaining why it needed them. He declined, but the app then exited.
After repeating this a few times he finally accepted. A few minutes later he received a notification email about a reply to a tweet that he had apparently posted. The tweet said “How about we all stop using pirated iOS apps? I promise to stop. I really will. #softwarepirateconfession”.
Andreas hadn't, of course, posted this “confession” – his dictionary app had done so. But the confession was false: Andreas' app wasn't pirated: he had paid US$50 for it, and had the receipt to prove it. It soon emerged that hundreds of other innocent users were similarly affected.
Whilst Andreas wasn't at fault, even if he had been, this was no excuse for the application developer to retaliate by abusing his private Twitter account details to post a fraudulent confession in his name.
The need for balance
Whilst copyright owners have rights, consumers have rights too. International law provides them with a right to privacy, a right to freedom of opinion and expression, a right to education, and a right to freely participate in the cultural life of the community.
Under national law, this includes the legal right to copy and share knowledge and culture to the extent that the “fair use” or “fair dealing” copyright doctrines allow.
In the cases described above and many others, the copyright enforcement industry has overstepped the bounds of proportionality and fairness. The owner of a piece of land has the right to charge for admission to his property, but doesn't have the right to beat an otherwise innocent trespasser to a pulp with a baseball bat.
So too, a copyright owner (or, let's be frank – a large corporation to whom creators assign their copyrights in order to commercialize them) has the legal and moral right to enjoy the benefits that flow from the commercialization of its work in the market.
But when copyright owners' inordinately harsh enforcement tactics (or those of governments in their thrall) are driving ordinary individuals to suicide or bankruptcy, or besmirching their reputations, something has gone very wrong. It tells us that the enforcement of copyright has swung way of balance with other important (indeed, more important) human rights.
Copyright is important. It ensures that creators receive recognition for their work, and allows them to share in the rewards of its commercialization, by limiting (without completely excluding) the public's freedom to use it without permission or payment.
But is it worth a single human life?
Dr Jeremy Malcolm is an Internet and Open Source lawyer, consumer advocate and geek. He is also a senior policy officer at Consumers International and can be found on Twitter and LinkedIn.
Previous Installment of Digital Consumers:
WCIT: Freemasons, Internet memes and salt
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