Over-the-top copyright protectionism

Copyright has always been pitched as striking a balance between the rights of creators to make a living off their work and the rights of the general public and future generations to benefit from that work. In recent decades, as big corporations have replaced actual creators as owners of many copyrighted works, the balance has been lost, tilted heavily towards you know who.

But that apparently is not enough to stem their greed, as the following story shows. It may come to nothing, of course, but it shows how far they will go to further line the pockets of big media and software companies (see the line about life imprisonment for using pirated software). Missing is any evidence that these companies are hard done by the way things are.

As for Canada, new copyright legislation is on the way. I doubt it goes this far, but like the trends down south, it will further entrench the legal rights of big corporations in the guise of “supporting artists.” In both Canada and the US, these moves show how public policy has been grotesquely shaped to meet corporate interests.

Gonzales proposes new crime: ‘Attempted’ copyright infringement

Attorney General Alberto Gonzales is pressing the U.S. Congress to enact a sweeping intellectual-property bill that would increase criminal penalties for copyright infringement, including “attempts” to commit piracy.

“To meet the global challenges of IP crime, our criminal laws must be kept updated,” Gonzales said during a speech before the U.S. Chamber of Commerce in Washington on Monday.

The Bush administration is throwing its support behind a proposal called the Intellectual Property Protection Act of 2007, which is likely to receive the enthusiastic support of the movie and music industries, and would represent the most dramatic rewrite of copyright law since a 2005 measure dealing with prerelease piracy.

Here’s our podcast on the topic.

The IPPA would, for instance:

* Criminalize “attempting” to infringe copyright. Federal law currently punishes not-for-profit copyright infringement with between 1 and 10 years in prison, but there has to be actual infringement that takes place. The IPPA would eliminate that requirement. (The Justice Department’s summary of the legislation says: “It is a general tenet of the criminal law that those who attempt to commit a crime but do not complete it are as morally culpable as those who succeed in doing so.”)

* Create a new crime of life imprisonment for using pirated software. Anyone using counterfeit products who “recklessly causes or attempts to cause death” can be imprisoned for life. During a conference call, Justice Department officials gave the example of a hospital using pirated software instead of paying for it.

* Permit more wiretaps for piracy investigations. Wiretaps would be authorized for investigations of Americans who are “attempting” to infringe copyrights.

* Allow computers to be seized more readily. Specifically, property such as a PC “intended to be used in any manner” to commit a copyright crime would be subject to forfeiture, including civil asset forfeiture. Civil asset forfeiture has become popular among police agencies in drug cases as a way to gain additional revenue, and it is problematic and controversial.

* Increase penalties for violating the Digital Millennium Copyright Act’s anticircumvention regulations. Criminal violations are currently punished by jail times of up to 10 years and fines of up to $1 million. The IPPA would add forfeiture penalties.

* Add penalties for “intended” copyright crimes. Certain copyright crimes currently require someone to commit the “distribution, including by electronic means, during any 180-day period of at least 10 copies” valued at more than $2,500. The IPPA would insert a new prohibition: actions that were “intended to consist of” distribution.

* Require Homeland Security to alert the Recording Industry Association of America. That would happen when CDs with “unauthorized fixations of the sounds, or sounds and images, of a live musical performance” are attempted to be imported. Neither the Motion Picture Association of America nor the Business Software Alliance (nor any other copyright holder, such as photographers, playwrights or news organizations, for that matter) would qualify for this kind of special treatment.

A representative of the Motion Picture Association of America told us: “We appreciate the department’s commitment to intellectual-property protection and look forward to working with both the department and Congress as the process moves ahead.”

What’s still unclear is the kind of reception this legislation might encounter on Capitol Hill. Gonzales may not be terribly popular, but Democrats do tend to be more closely aligned with Hollywood and the recording industry than is the GOP. (A few years ago, Republicans even savaged fellow conservatives for allying themselves too closely with copyright holders.)

On behalf of Rep. Howard Berman, the California Democrat who heads the House Judiciary subcommittee that focuses on intellectual property, a representative said the congressman is reviewing proposals from the attorney general and others. The aide said the Hollywood politician plans to introduce his own intellectual-property enforcement bill later this year but that his office is not prepared to discuss any details yet.

One key Republican was less guarded. “We are reviewing (the attorney general’s) proposal. Any plan to stop IP theft will benefit the economy and the American worker,” said Rep. Lamar Smith of Texas, the top Republican on the House Judiciary committee. “I applaud the attorney general for recognizing the need to protect intellectual property.”

Still, it’s too early to tell what might happen. A similar copyright bill that Smith, the RIAA and the Software and Information Industry Association enthusiastically supported last April never went anywhere.


  • Lots to comment on there, but: (i) the push has been world-wide to attempt to criminalize what is now a civil issue, which has two implications: stiffer fines/sentences, but more importantly, brings enforcment more directly within the responsibility of public authorities/police…which is sort of creepy; (ii) standard economic analysis of copyright and patents (statutory monopolies) would predict both incentive to mis-behave by producers and consumers; (iii) the copyright bill in Canada being proposed is along the lines of WIPO harmonization effort (exactly how drastic is still open as you say); (iv) it has cost at least one politician her job so far (Sarmite Bulte, Torono High Park, whom M Giest of Ottawa U skewered last election). Dean Baker/CEPR have had an analysis of of the costs of IP protections for some time now…

  • Good piece in the new yorker along similar lines. http://tinyurl.com/2tdr4h

    The push is on to impose west-friendly IP laws globally. At a certain point, “stronger” IP laws are a form of protectionism that do not maximise utility or provide greater aggregate benefits. Developing nations have always done better with “weaker” (quotes used because IP can be extremely nuanced and those terms are very crude) IP laws. It also exports a certain quasi-cultural view of what can and should be owned and commodified, and what types of labour should be rewarded in what kind of ways. As the article notes, the discrepancy in the West’s approaches to developing nations’s labour and IP laws is striking.

    Michael Geist has a good blog on IP issues for those interested in looking into this stuff more. The are can get technical quickly (as I said, these laws are very detailed and nuanced and big changes can come in small packages), but IP is the leading edge of capitalism — it is in effect creating capital, and developing the state’s response to protecting that capital.

  • Anyone using counterfeit products who “recklessly causes or attempts to cause death” can be imprisoned for life.

    Does that mean that if you reckless cause or attempt to cause death with legal software, you’re all good?

  • makes you wonder which evil they think is more serious, doesn’t it. Very very strange stuff.

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