Epiphany: Rep. John Conyers Realizes Mid-Hearing That His Copyright Position Contradicts His Stand Against Overcriminalization

from the when-reality-sets-in dept

It’s hard to imagine looking at the absurdly excessive copyright penalties on the books and thinking, “Hey, maybe these should be a bit higher.” But Congress has shown itself to be exceedingly imaginative when it comes to cranking up copyright, so perhaps it is no surprise that in yesterday’s hearing on those penalties?covering statutory damages and criminal sanctions?a number of witnesses and Representatives alike seemed to think that those remedies are insufficient.

More surprising, though, was an unexpected moment of clarity from Michigan’s Rep. John Conyers, a staple of the Judiciary Committee’s reform hearing process and a reliable supporter of ratcheting up copyright enforcement capabilities. Conyers broke the first rule of copyright exceptionalism club by actually talking about the fact that this discussion would seem pretty unreasonable?even by Congressional standards?in areas outside of copyright.

Specifically, Conyers referred to the very real problem of overcriminalization, which absolutely afflicts copyright policy. This, after all, is the area of law that has made us an “Infringement Nation,” routinely racking up millions of dollars in hypothetical damages throughout the course of an average day. Conyers generally pushes back against this overcriminalization, but here he is arguing for misdemeanors to be made into felonies?what gives?

If you can’t see that, here’s the key clip, though it helps to watch the video:

Conyers: Mr. Assistant Attorney General, what else can we do besides addressing the felony streaming issue? It seems like… uh… once we get that going… uh… {long pause}… Well, it seems to me like there’s an underprosecution. Normally, I… {pause} come to the committee complaining about overcriminalization. {Looks around} And now I find myself in the awkward position of saying… uh… let’s make a felony of somebody’s misdemeanors. Can you give me some comfort in some way? {awkward smirk}

David Bitkower, the witness from the Department of Justice, basically says that from the DOJ’s perspective there is no overcriminalization problem, which is unsurprising. Then Nancy Wolff, a witness from the law firm of Cowan, DeBaets, Abrahams & Sheppard, adds that the ridiculously high damages helps plaintiffs force defendants to settle. Finally, Public Knowledge’s Sherwin Siy notes that Conyers’s question was spot on: our current excessive penalties do encourage certain plaintiffs to pursue non-meritorious claims, and that’s something to be concerned about.

You can see on Conyers’ face that he was looking for some resolution to his cognitive dissonance, but he couldn’t find it. Copyright exceptionalism is simply inconsistent with fact-based policy?so when it comes time to reconcile the two, you’re going to have a bad time.

Let’s hope this moment was a lawmaker beginning to see the light. As EFF lays out in our brand new copyright whitepaper, “Collateral Damages”, excessive and unpredictable penalties can chill free speech and stifle innovation. On such an important issue, it’s encouraging to see lawmakers breaking from the standard script.

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Comments on “Epiphany: Rep. John Conyers Realizes Mid-Hearing That His Copyright Position Contradicts His Stand Against Overcriminalization”

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31 Comments
Edward Teach says:

Re: Streaming is theft, shipmate!

Arr, matey, all copying is theft! Except maybe when the MPAA or RIAA itself does the copying. And maybe when the US DoJ does the copying. Neigh, all copying is theft, except when the nobility, the aristocracy and the Royal Family does it.

The only way out of these issues is to declare special classes of people, perhaps with patrilineal inheritance, so that these classes, call them “Rightsholders” (a.k.a. “property owners”, “landowners”, “gentry”), have a separate rule that lets them copy. For everyone else, mate, it’s a High Crime, perhaps akin to terrorism, or treason, or consorting with demons.

Anonymous Coward says:

America -- The best justice money can buy

Article wrote:

“Then Nancy Wolff, a witness from the law firm of Cowan, DeBaets, Abrahams & Sheppard, adds that the ridiculously high damages helps plaintiffs
force defendants to settle.”

So let me get this straight, high damages awards are just
because they gives an IP plaintiff the leverage to force a defendant to settle rather than having the claim proven in court.

Your legal system is sickening.

There is much wrong with Europe, but our
IP laws are, except for Germany, more reasonable.

Anonymous Coward says:

Re: America -- The best justice money can buy

You are stupid to think Europe any better, different yes… but better? No, not a chance in hell.

It’s like… hey pick your poison… we have one that will burn your skin off and here is one that will peel your skin off.

Different and while some may ‘prefer’ one poison to another… the end result is the same. You DIE.

Anonymous Coward says:

‘it’s encouraging to see lawmakers breaking from the standard script.’

they aren’t changing at all. what they are doing is trying to find another way to screw the ordinary citizens (rather than going after the criminal gangs we keep hearing about that really are making a living off copyright infringement. remember though, the people concerned here fight back, literally!!) by using different terminology!!

Anonymous Coward says:

Politicians are capable of spontaneously developing self-awareness? Astounding! At this rate, they might even develop sentience! Perhaps someday we might be able to reason with them, convince them to treat us as equals instead of as a resource to exploit.
Maybe someday, humans and politicians will be able to live together in harmony…

David says:

A Modest Proposal

So we are now turning civil actions in to misdemeanors, and now into felonies. Which is not over-criminalization. Why don’t we just jump to the obvious step of having death penalties for copyright infringement, Mr. Conyers? Life in prison without parole?

Since you can’t understand ‘over-criminalization’ with the current penalty creep, let’s work backwards and everyone decide what’s the WORSE punishment everyone agrees would be ‘over-criminalization’ and let everyone see where they are coming from.

That One Guy (profile) says:

And this is what happens when the bank account runs dry

Politicians start thinking about what they’re being told to say, instead of just parroting it without a thought.

I’m sure his ‘temporary confusion’ will clear right up after a healthy dose of Vitamin C(ash), and he’ll be right back on board, championing putting copyright infringement right up alongside assault and other actual major crimes.

Also, the DOJ and someone from a pack of lawyers are in favor of measures that make it less likely they’ll ever have to take their evidence to court and prove it, who’d have ever seen that coming? /s

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