[Infowarrior] - Copy a CD, owe $1.5 million under "gluttonous" PRO-IP Act

[Richard Forno]

Copy a CD, owe $1.5 million under "gluttonous" PRO-IP Act

By Nate Anderson | Published: January 29, 2008 - 09:57PM CT

http://arstechnica.com/news.ars/post/20080129-statutory-damages-not-high-eno
ugh.html

Not content with the current (and already massive) statutory damages allowed
under copyright law, the RIAA is pushing to expand the provision. The issue
is compilations, which now are treated as a single work. In the RIAA's
perfect world, each copied track would count as a separate act of
infringement, meaning that a copying a ten-song CD even one time could end
up costing a defendant $1.5 million if done willfully. Sound fair?
Proportional? Necessary? Not really, but that doesn't mean it won't become
law.

The change to statutory damages is contained in the PRO-IP Act that is
currently up for consideration in Congress. We've reported on the bill
before, noting that Google's top copyright lawyer (and the man who wrote a
seven-volume treatise on the subject of copyright law), William Patry,
called the bill the most "outrageously gluttonous IP bill ever introduced in
the US."

The industries pushing it (music, especially) have an "unslakable lust for
more and more rights, longer terms of protection, draconian criminal
provisions, and civil damages that bear no resemblance to the damages
suffered," he said.

Public Knowledge head Gigi Sohn testified before Congress last year that
statutory damages are already "disproportionate penalties for infringement,"
pointing that it hardly seems fair to bill someone like Jammie Thomas more
than $9,000 per song when each track costs a buck. Even accounting for a
punitive penalty, that seems absurdly high.

Both Patry and Sohn attended a Copyright Office roundtable on statutory
damages a few days ago, and Public Knowledge's staff attorney Sherwin Siy
has posted a fascinating writeup of the closed-door session.

The meeting was a small affair, with only 30 or so stakeholders in
attendance, and it quickly became clear that even content owners had
different takes on the situation. The Magazine Publishers Association, for
instance, argued for maintaining the current law. If the PRO-IP Act passes,
anyone found guilty of copying a magazine could be liable for hundreds of
separate acts of infringement (at the judge's discretion), but magazine
accused of copyright violations would face similarly huge penalties.

Patry wasn't pleased with the PRO-IP Act, nor was Public Knowledge. On the
other side, the argument seemed to be that people could take advantage of
the law to copy "greatest hits" albums or other compilations but be liable
for less damages than if they had ripped the songs from ten individual
albums. As Siy points out, no one in the room could offer any actual
evidence of such "crafty defendants," and the change in law would likely do
little to change the behavior of file-swappers.

Given the huge amounts already available to copyright holders (who can
always collect actual damages if the statutory damages truly aren't large
enough to cover their costs), an increase in statutory damages seems only
useful when pursuing true "pirates" and large-scale infringers.
Unfortunately, the PRO-IP Act would would make the damages an option in
small-scale file-swapping cases, the kinds of cases that the European Court
of Justice doesn't seem real worried about. When it comes to casual,
non-commercial users, current awards are high enough already.