Tuesday, June 19, 2007

Over-Criminalizing Copyright

In an important speech delivered on the occasion of the the Stephen Stewart Memorial lecture in 1995 and later published as "Copyright: Over-Strength, Over-Regulated, Over-rated," 18 European Intellectual Property Review 253 (1996), the great English judge and intellectual property scholar Sir Hugh Laddie questioned the appropriateness of criminal proceedings for copyright infringement. Since I can't write as well as Sir Hugh, I will reproduce his remarks:

Those of you who have hired video films may have noticed that, when the tape is played, a message comes up on the television screen which says "VIDEO PIRACY IS A CRIME'. Well it is. Criminal provisions have been found in Copyright Acts for some years but now, apparently for the first time, they are being used in earnest. A recently reported case is illuminating. Criminal proceedings were brought against a book publisher and its directors. I think there were nine directors in all. One of them was the infirm 87-year-old widow of the original founder of the publisher. The publisher had produced a book which contained reproductions of one or more copyright paintings. Difficult questions of fair dealing were raised as a defence. It might be thought that to bring such proceedings with complicated issues of copyright law before a magistrates' court did not make sense. However, I find it difficult to fault the logic of those acting for the private prosecutor. The Copyright Act stipulates that criminal procedures may be invoked against an alleged infringer and, in the case of an infringing company, its directors. Why not use these weapons? If the proceedings had been brought in civil courts, it is almost certain that the directors would have been struck out of the proceedings since there was no evidence, at least in relation to most of them, that they had any personal involvement in the production of the offensive book. But the criminal provisions relating to directors in the Act are, to say the least, relaxed. And if it is permissible to bring criminal proceedings, why not do so? The threat of a criminal conviction hanging over an alleged infringer's head and the heads of its directors is much more likely to make them sue for peace than the mere risk of losing in civil proceedings. Like the prospect of being hanged, it does concentrate the mind. The fact that these statutory provisions are being used to enforce purely private commercial rights appears to be irrelevant. Furthermore, there is a great incentive to proceed in this way. The costs of the prosecuting copyright owner are usually paid out of central funds, even if the prosecution fails. This little bit of budgetary largesse has escaped critical scrutiny so far. We have therefore reached the stage where taxpayers' money is being used to enforce private rights which many might think are more than adequately protected by civil remedies. I should also mention that it appears that in most cases it is not the poor and weak who are using these criminal provisions but the rich and well organised.

The issue of criminal prosecutions in copyright disputes came up again last week during a press conference in Washington, D.C. held by yet another group seeking the strengthen IP law, this time the "Coalition Against Counterfeiting and Piracy." Who could be for counterfeiting and piracy (assuming the terms are properly defined). The remarks that drew the most press were those of NBC/Universal General Counsel Rick Cotton, who is reported to have stated:
“Our law enforcement resources are seriously misaligned. If you add up all the various kinds of property crimes in this country, everything from theft, to fraud, to burglary, bank-robbing, all of it, it costs the country $16 billion a year. But intellectual property crime runs to hundreds of billions [of dollars] a year. We’re having intensive consultations with the leadership in Congress, and we’ll be consulting closely with the appropriate committee chairman to try to put the agenda into the appropriate legislative vehicles." The group is also said to support the creation of a new IP enforcement coordinator within the White House.

I am not opposed to all criminal copyright provisions. I drafted two while copyright counsel to the U.S. House of Representatives, the bootleg provision that Mr. Martignon will now perhaps be tried under, and a general revision of the criminal sections to eliminate differences among subject matter. But I cannot imagine that enforcement difficulties have anything to do with the lack of existing adequate criminal remedies. Very few acts of infringement warrant criminal prosecution, which should be limited to large-scale commercial enterprises. With Justice laddie, I think that taxpayers' money should not be used to enforce private rights which are more than adequately protected by civil remedies, and I doubt many taxpayers share the view that theft, fraud, and violent crime are, absolutely or relatively, petty.


Anonymous said...

I see this as yet *another* attempt by large corporate copyright holders to shove fair use protections out the back door.

As Justice Laddie sagely points out, many people are willing to balance the simple business risk of possibly paying a retroactive license fee when fairly reusing someone else's content. But I doubt too many people want to risk going to jail over it. And certainly corporate management and boards are going to look much harder at what they're doing if they have personal criminal liability for what some graphic designer way down the totem pole is doing.

Make no mistake, a clear threat of jail time will kill fair use, which is likely the real intent here.

Crosbie Fitch said...

There are two ways to set citizen Gulliver free from the Lilliputian publishers' web of bonds.

1) Persuade the Lilliputians that Gulliver should be released a free man.

2) Persuade the Lilliputians that Gulliver should be ever more harshly punished each time he struggles or snaps one of his bonds.

I think we're looking at a win-win situation here.

The question that most intrigues me:
Is this by design?

Are publishers on the side of the public and deliberately hastening the demise of their own privileges?

Perhaps publishers are philanthropists after all?

Maybe they know that the only power able to wrest copyright away from them is in the hands of a provoked people.

One can conclude that increasingly criminalising copyright is a clue to the cartel's cunning, that there is a conscientious conspiracy among them to contrive its collapse.

Any other alternative presents publishers as a mob of morons running a protection racket. I suspect they're a little more intelligent than that.

Or rather, perhaps most are morons, but there is a cabal of altruistic crypto-abolitionists pushing for ever more draconian legislation in full knowledge that it's the easiest and quickest way to set the people free.

Conspiracy or catastrophe?

Either way, the Leviathan awakes...

Max Lybbert said...

In comments to the previous blog post, I suggested that criminal actions should be able to seize funds beyond lost licensing revenue.

To clear things up, when I made that suggestion, I was thinking about the fact that some crimes are classified as misdemeanors -- or rather that a misdemeanor is defined as a crime punished by up to a year in jail.

Thinking things over, however, the hefty fines and, IIRC, five year jail sentences associated with criminal copyright infringement aren't something I would want in most copyright infringement cases.

I don't know if such an animal as "misdemeanor copyright infringement" exists, but it seems that it ought to.

William Patry said...

Max, there are copyright misdemeanors.

Max Lybbert said...

Then again, having a federal crime on your record -- even a misdemeanor -- can be a big handicap.

Hmmm. Looks like I'll have to give this more thought.

The funny thing is that before I started reading this blog, I was certain Copyright went too far. Now I've settled in to "Copyright's not perfect, but it's not the worst law ever." Looks like I'm about ready to change my opinion to something more like "Copyright could use major revisions, and soon."

Anonymous said...

Criminalizing civil matters, such as copyright infringement, is an abuse of society where commercial interests bring the power of the state and its virtually limiteless resources to bear in the most heavy-handed way in order to extort a settlement on pain of a criminal record for the alleged offender who will settle, guilty or not, to avoid the risk of conviction even though they may be innocent.