Copyright

by Mike Masnick


Filed Under:
comparisons, copyright, crimes, theft



How Does The Penalty For 'Content Theft' Match Up With Similar 'Crimes'?

from the insanity-made-clear dept

We've discussed, for years, how copyright maximalists have continually played with and twisted the language to make infringement sound much, much worse. For years, of course, they liked to just call it "piracy," though in the last few years, they've sometimes shied away from that word, complaining that it made it seem glamorous. More recently, it seems they've been focused on calling it "content theft," somehow believing that that's more likely to get a reaction.

Of course, as we've also pointed out time and time again copying is not theft, and the two are exceptionally different:
Of course, the second you start to go down this path, the copyright maximalists accuse you of playing semantics (which really means they don't like it when you prove their analogy isn't accurate at all). However, what if we accept their claim that copyright infringement is somehow "content theft"? Just as a thought experiment, let's grant them their ridiculous premise... and compare the punishment to similar forms of "theft." That's exactly what copyright lawyer Andrew P. Bridges has done, noting that since copyright infringement isn't anything like typical theft (since no product is missing), it could be described in similar terms to other "crimes" that involve someone failing to pay the required amount:
Under the “theft” conception of copyright law, what, exactly, is the deprivation when someone makes illegal copies? It really boils down to just one thing: money. Copyright infringement – renamed copyright theft — deprives the copyright holder of some of his or her expected profit from exploiting the copyright.

What are other, similar kinds of “theft” by depriving someone of expected money? Failure of a tenant to pay the agreed rent to a landlord is one. Parking in a parking space without putting money in the meter is another. Jumping the turnstile to ride on a subway without paying the fare is a third. (And, of course, failure of a studio or record label to pay artists or actors the promised contractual royalties for their work on a record or film is a fourth. But something tells me the studios and labels sponsoring the current bills won’t go near that topic. The bills don’t include rogue studios and labels in their scope.)
Okay, so if we grant them their premise, and then compare it to similar cases where people don't pay the requested fee, but still get the "benefit," then what is the punishment in those other cases? Bridges notices that there appears to be one... um... outlier in the group:
How do the civil damages or penalties for the different types of such “theft” compare? Failure to pay expected money under a contract doesn’t trigger a penalty: contract law usually says that a party can recover the money she expected but not punitive damages or attorneys fees (unless parties have specifically bargained to pay attorneys fees for a breach). Failure to pay rent usually requires payment of rent to cure the default. Failure to put money in the parking meter prompts a ticket for $60. In New York City, failure to pay the $2.50 subway fare results in a maximum fine of $100.

Copyright “theft” is a very different story. Copyright infringement statutory damages in civil litigation can be as high as $150,000 for infringement of a single work. Yes, a single work such as a single song with an iTunes download value of $1. A copyright holder can claim such statutory damages without needing to prove a single penny of damage or loss. Think such sky-high damages aren’t realistic? Think again. In the RIAA’s case against single mother Jammie Thomas, a jury awarded $1,500,000 for the download of 24 songs, with no proof that she had transmitted songs to others. The federal judge thought that was ridiculous and reduced the total award to $54,000 – and the RIAA and MPAA are now arguing strenuously on appeal that the jury verdict should return to the original figure, $62,500 per downloaded song.
What if we work backwards, and see how the law might punish those other, similar, infractions with a damages system similar to copyright:
If we take copyright law’s maximum-penalty-to-price ratio as applied to an illegal download, and apply that same penalty-to-price ratio to the New York subway, the maximum penalty for jumping that turnstile and avoiding the $2.50 fare would be $375,000 instead of $100. Copyright industries are on to a really good thing under current law. One could say it’s a steal.
And yet the industry claims that copyright laws are too weak currently? That seems difficult to square with reality.

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  1. icon
    The eejit (profile), 13 Feb 2012 @ 11:56am

    Re: Re: Re: Re:

    I think you may have missed the point that Michael Long was making: that the deterrence can only happen once someone is caught. For highly elusive crimes, like file-sharing, it's incredibly hard to prove - hence, the statutory damages are significantly higher than in, say, shoplifting.

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