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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    alternatives(), Jul 25th, 2014 @ 7:50am

    and yet - where is the counting and listing of laws

    so we, the people, can know what laws we are breaking?

    Help us Congress with understanding what the laws are so we avoid not having the excuse of "ignorance of the law"

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 7:58am

    His handler frantic signals.....

    His handler were frantically signaling him from off-camera... it's when he finely notices the signals that he tries to correct himself.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:11am

    Perhaps the MPAA was late with its payments and Conyers was making one of those vague Italian threats. "Gee, sure would bad if I suddenly had a change of heart right here, if only someone or something could clear my mind on the matter? *wink *wink"

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:23am

    Why is this being called a "streaming issue" as though all streaming is a violation of copyright?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:38am

    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.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:38am

    Understatement much?

    "Overcriminalization?" Any criminalization is overcriminalization. For the majority of the history of copyright, infringement was strictly a matter of civil law not criminal law as it should be.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:39am

    We need hypothetical currency to pay for hypothetical damages.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:42am

    Re:

    Monopoly money seems appropriate.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:44am

    Re: Understatement much?

    Sorry but, for most of history there was no copyright, the difficulty was finding a first or second generation copy to copy.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:46am

    '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!!

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:52am

    Re: and yet - where is the counting and listing of laws

    Congress cannot help you.

    The reason for these damn circuses is exactly what it is.

    Congress & Politicians et al asking for clarification on the damn laws they "stupidly and ignorantly" passed!

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:55am

    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.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 8:56am

    Re: Re:

    Incidentally its the only money I have a significant amount of.

    They use monopoly money to drum up the costs, but expect real money in exchange for the pay off... nice scheme they have going.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 9:20am

    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...

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 9:29am

    Re: Re: Understatement much?

    Read my comment again.

    I said for most of the history OF COPYRIGHT which was to imply that before that copyright didn't even exist.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 9:32am

    Re: Re: Re:

    Apparently the exchange rate between USD and Monopoly money is calculated with Hollywood Math.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 9:39am

    It's good to see Rep. Conyers has enough character and intellect to think his epiphany through. Most representatives would just think about campaign donations and continue reading off the talking points script.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    David, Jul 25th, 2014 @ 9:40am

    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.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    lucidrenegade (profile), Jul 25th, 2014 @ 10:04am

    "You can see on Conyers' face that he was looking for some resolution to his cognitive dissonance, but he couldn't find it."

    Incorrect. He was actually filling his Depends.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    nasch (profile), Jul 25th, 2014 @ 10:26am

    Re:

    You might be giving him too much credit, but at least he is actually thinking about the positions he's taken in the past, rather than just the campaign contributions he's expecting in the future. Or maybe even I'm giving him too much credit...

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Edward Teach, Jul 25th, 2014 @ 10:42am

    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.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 10:55am

    Re: Re:

    "You might be giving him too much credit, but at least he is actually thinking about the positions he's taken in the past"


    I hear the position he takes for the MPAA is the one he bends over for , he just want us the enjoy it as much as he does (but by force)

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    limbodog (profile), Jul 25th, 2014 @ 11:13am

    Begins to see the light

    Rep Conyers: "This seems like overcriminalization, Can you give me some comfort in some way?"

    Lobbyist: "Here's your donation check for this year."

    Rep Conyers. "Thank you, feeling better already."

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    John Fenderson (profile), Jul 25th, 2014 @ 12:54pm

    Re: America -- The best justice money can buy

    "Your legal system is sickening."

    We know. Oh good goddess how we know.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 2:06pm

    America where the 1% make the laws for the rest of ̶A̶m̶e̶r̶i̶c̶a̶ I mean the world.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    nasch (profile), Jul 25th, 2014 @ 2:38pm

    Re:

    America where the 1% make the laws for the rest of ̶A̶m̶e̶r̶i̶c̶a̶ I mean the world.

    Probably more like the .01%. After all, 1% is over 3 million people.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 2:50pm

    Re: Streaming is theft, shipmate!

    That's why DVR tv recorder weren't pushed much to replace the VHS. I finally bought one for my mom and she had no idea they existed.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 2:52pm

    Re: America -- The best justice money can buy

    Netherlands are pretty awesome too, except for that usenet company that was told to control all the content it opened its door to.....please have all judges over 40 to retire.

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    That One Guy (profile), Jul 25th, 2014 @ 3:39pm

    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

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    any moose cow word, Jul 25th, 2014 @ 3:49pm

    Re: Re:

    To me, "Can you give me some comfort in some way?" sounds like he may have some conscious, but he's welling to take monetary "comfort" nonetheless.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Jul 25th, 2014 @ 9:51pm

    On such an important issue, it's encouraging to see lawmakers breaking from the standard script.
    He didn't intentionally break from the standard script, it just wasn't available due to an automated DMCA takedown notice.

     

    reply to this | link to this | view in thread ]


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