Congress, the new copyright bully

Congress has become exasperated with its inability to get Americans to stop engaging in copyright infringement. So Rep. Howard Berman jokes that he "probably" does not favor the death penalty for infringers, Sen. Orrin Hatch half-jokes that he would like to blow up the computers of infringers and Rep. John Carter wants to see infringing college kids thrown in jail for 33 months.

However, in more candid moments, members of Congress admit that they don't know what to do next, from a policy standpoint, to combat infringement. A prime example of this policy vacuum is Congress? proposal du jour, the Author, Consumer and Computer Owner Protection and Security (ACCOPS) Act.

Having criminalized willful nonprofit copyright infringement in 1997 through the No Electronic Theft Act without much success, some in Congress believe the law is too weak and needs more teeth. Thus, the new bill proposes a clear and simple standard for criminal copyright infringement: You commit a felony if you upload one infringing copyrighted work to the Internet.

Have an infringing MP3 in your shared peer-to-peer software directory? Go to jail. Post a newspaper article to your blog? Go to jail. Upload a photo taken by your wedding photographer to a family album Web site? Go to jail.

The bill does not reflect a well-thought-out policy toward criminal copyright infringement. It cannot even be blamed on pandering to the copyright owner lobby. Instead, the bill simply reflects Congress? stubborn determination to bully the American people into doing what it wants.

In the past decade, through dozens of congressional oversight hearings where usually only industry representatives testify, Congress has been completely convinced that rampant copyright infringement threatens to destroy the American economy. Having internalized this threat, Congress is now determined to fix that problem the only way it knows how--threaten ordinary citizens with jail, despite collateral consequences.

And yet, just about everyone outside the Beltway knows that criminal copyright law has already gone too far. We necessarily commit copyright infringement as an unavoidable consequence of living in a digital society. But the criminal law already treats much of that conduct the same as it treats the blatant piracy that poses more serious jeopardy to copyright owner interests. With the rules so bluntly delineated, we cannot respect them or comply.

Rather than making a seemingly endless number of ad hoc proposals, Congress needs to develop an integrated policy about criminal copyright infringement. To do so, Congress needs to realize two things.

Have an infringing MP3 in your shared peer-to-peer software directory? Go to jail. Post a newspaper article to your blog? Go to jail.

First, it is not acceptable to put average Americans at the peril of going to jail for doing everyday activities. Second, if the existing laws are not yielding the desired results, perhaps they were bad policy, in which case making them tougher only compounds the initial policy failure.

There is a solution to Congress' copyright conundrum, and it does not require more legislation. If copyright owners want to curb infringement, they need to bear more responsibility. Ideally, copyright owners would develop better business models that work even in the face of widespread micro-infringements. But if such business models are not possible, copyright owners can control infringements by bringing lawsuits themselves.

The record industry has already vowed to do so, and such lawsuits should be respected, not criticized.

If the record industry thinks that its problems warrant litigation, they should use the laws that are already on the books. Of course, those lawsuits come at some risk, as they require the industry to sue its customers. But the record industry, much more so than government prosecutors, can determine the cost benefit of suing customers to reduce infringement. If the record industry decides that lawsuits are not worth it, what does that say about the need for criminal enforcement?

Thus, Congress' anger at the American public for continuing to infringe is misdirected. Instead, Congress should be angry with copyright owners for failing to use the many powerful tools that Congress has already given them. If Congress wants a sensible policy to stem infringement, try this: Before giving industry advocates new laws, make them prove that they took full advantage of the laws that Congress gave them the last time they asked.