The Founding Fathers created copyright “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8.
With this in mind, “[i]f you could design a regime of enforcing copyrights from scratch, would you propose something like the current system? Or would you favor less draconian laws combined with more enforcement?” – Orin S. Kerr, Computer Crime Law, 165.
Within computer law, statutory restrictions and damage awards were initially instituted to take out large-scale piraters have slid down a slippery slope. While infringement was once primarily a civil crime, there was an expansion of criminal penalties that extended to certain works in 1982 and to all works in 1992. Not only that, the No Electronic Theft (“NET”) Act of 1997 made it so that there doesn’t necessarily have to be any commercial benefit to the infringer for criminally liability to attach.
The shift towards a “remix” culture – which is less likely to acknowledge extensive and exclusive IP rights – has been paralleled by legislative reform to expand the penalties and criminal sanctions on offenders. Famously, the streaming provisions of SOPA and the Felony Streaming Bill would throw Justin Beiber in jail and make felons of bloggers who embed the wrong video. In addition, violating 17 USC § 1202 (Integrity of Copyright Management Information) or 17 USC § 1201 (Circumvention of Copyright Protection Systems) could get an individual up to 10 years in jail or a million dollars in fines.
Is this really the right approach to take?
Prosecutors may elect to follow guidelines to only pursue cases against the major “organized crime” types of infringers, Megavideo-style. Yet, the broad statutory language provides a legal basis for damages of hundreds of thousands of dollars being imposed on individual citizens (as in the Tenenbaum case) or ridiculous claims, as when the RIAA attempted to sue LimeWire for $75 trillion in damages in 2010 – more than the GDP of the entire global economy.
In many ways, the Megaupload arrests exemplify the shift toward criminal liability for copyright infringement. Benkler provided an amazing analysis of SOPA/PIPA/Megaupload, and a call to webizens of the world to push back for a more tempered IP policy geared towards incentivizing the arts. Kim Dotcom is creepy and weird, but the case hits at the roots of DMCA protection and the “willfulness” requirements for criminal prosecution (see Megaupload: A Lot Less Guilty Than You Think for an interesting analysis of civil penalties v. criminal liability).
The web has enabled a culture of remixing and sharing, as well as a culture of hacking and warez. How does the current system incentivize creative production? Do the positive externalities outweigh the chilling effects? What should the law be doing to foster a creative culture?