Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX, Lecture 12.3, Remedies: Criminal Penalties

William Fisher, CopyrightX, Lecture 12.3, Remedies: Criminal Penalties

I suggested, in the preceding
segment of this lecture, that many people believe that
retribution and perhaps deterrence are inappropriate roles for private
copyright infringement suits. Such things, is commonly said,
should be left to the criminal law. Why? In part because the government,
representing the people as a whole not individual parties,
is the right party to identify behavior
worthy of punishment and to impose such punishments. A more subtle explanation
sometimes offered is that enforcement of criminal law,
unlike enforcement of civil law, is controlled by prosecutors who can
and do exercise discretion in selecting, from among the surplus of
potentially punishable actions, those that truly merit prosecution. Arguably, in short,
there’s an important role for criminal sanctions
in the law of copyright. For better or worse until recently, the
role that criminal law actually played was modest. Although the United States first adopted
criminal copyright penalties in 1897, until the late 20th Century, they
were rarely applicable to instances of copyright infringement and
even more rarely enforced. In the last 15 years,
the tide has turned. Congress repeatedly has both
expanded the set of activities that are subject to criminal
penalties and increased the magnitude of those penalties. Prosecutions, relying on the strength
and rules, have been increasing. Here are a few
manifestations of this trend. In 1994, David LaMacchia, then an
MIT graduate student shown here with his lawyer, set up an
electronic bulletin board and encouraged users to upload to it
copies of popular commercial software programs which other users could
then download to their own computers. At a time, Section 505(a)
of the copyright statute was, in the court’s judgment, the
only applicable criminal provision. And it required the government to
prove that the defendant acted quote willfully and for the purpose
of commercial advantage or private financial gain close quote. Because LaMacchia had not sought to
profit in any way from his actions, he escaped liability. In response, Congress adopted
the so-called No Electronic Theft Act, which closed what it
saw as a loophole by adding, as an additional possible
basis of liability, that the defendant made multiple
copies of copyrighted works worth more than $2,500. The relevant provision has since
been amended to make it even easier for the government. The current version of Section 505(a)
allows conviction upon a showing that the defendant reproduced or
distributed during any 180-day period one or more copies or phonorecords of
one or more copyrighted works, which have a total retail value
of more than $1,000. These statutory adjustments have since
enabled the government to secure guilty pleas from defendants who engaged
in conduct similar to LaMacchia’s. It should be emphasized that the
pertinent criminal penalties are not trivial. In addition to fines, defendants
convicted under 505(a) are potentially subject to
substantial terms of imprisonment. Back to our list. As you know from the
previous lecture, in 1998, Congress adopted the Digital
Millennium Copyright Act, which, among other things, added
to the copyright statute Section 1201 which imposes serious criminal
sanctions on persons who circumvent technological protection
measures or traffic in technology designed for such circumvention. In 2004, Congress adopted the
Anti-Counterfeiting Amendments Act, which criminalized trafficking in
false labels on copyrighted works. The following year, it added the
Family Entertainment and Copyright Act, which penalized the
recording of movies in theaters. Finally in 2008, Congress adopted the
Prioritizing Resources and Organization for Intellectual
Property Act, the Pro-IP Act for short, which converted
to felonies most copyright related offenses that
previously had been misdemeanors and increased the resources
of the Justice Department for pursuing IP related crimes. Since then, the United States has
sought during trade negotiations to persuade other nations to increase
the levels of criminal copyright enforcement in their own jurisdictions. The most important
such initiative to date is the Anti-Counterfeiting
Trade Agreement. In whose negotiation, the United
States was a major participant. As you can see, Article 23 of
ACTA requires member countries, among other things, to quote provide
for criminal procedures and penalties to be applied at least in cases of
willful copyright or related rights piracy on a commercial scale. Note how the next
clause in the provision attempts to grapple with
the same issues addressed in the No Electronic Theft Act quote
acts carried out on a commercial scale include at least those carried
out as commercial activities for direct or indirect economic
or commercial advantage. As you know from lecture number one,
ACTA has not yet entered into force and may never do so. But if it does, it will extend the US
trend toward increasingly expensive criminal copyright liability
to other member countries. These legislative initiatives
have been accompanied by an increasing in the frequency
of prosecution, both in the US and in other countries. Among the most high profile cases
was the successful prosecution in Sweden of the four people who set
up and ran the file sharing site Pirate Bay. Although the Swedish authorities
seem to have had trouble enforcing the relatively
modest prison terms and fines imposed on those four defendants. Even more notorious are the ongoing
efforts of the US prosecutors to extradite and prosecute Kim
Dotcom, the flamboyant creator of the New Zealand-based
site Megaupload. Before it was shut down, Megaupload
was definitely a for profit enterprise. Between 2005 and 2012, according
to the indictment in the case, Megaupload earned more than $150
million in paid subscriptions and more than $25 million
in advertising fees. In 2010 alone Mr. Dotcom himself
earned more than $42 million. Not all of these prosecutions
have resulted in convictions. For example, Isamu Kaneko, the Japanese
developer of the Winny file sharing system, was ultimately
acquitted on the ground that the system, although most
often used for illegal purposes, was capable of substantial
non-infringing uses. Note the echo of the
Betamax CONSU defense here. But in most of these cases, the
government has ultimately prevailed. One of the most recent prosecutions
came painfully close to home. Aaron Swartz was a brilliant young
programmer and internet activist. Among many other things, he helped
found the social news site reddit and helped Larry Lessig establish
Creative Commons about which you learned in lecture number six. Swartz believed deeply that
information of all sorts should be widely accessible. And that belief proved his undoing. In 2011, while he was a fellow
at Harvard’s Safra Center, Swartz surreptitiously downloaded
a large number of journal articles from the website of JSTOR, a massive
nonprofit repository of such articles, to a laptop computer that
he placed in a closet at the Massachusetts
Institute of Technology. Most likely, Swartz intended
to make the articles available to the public at large. But he never did so. His actions were detected,
and he was arrested. He subsequently returned to JSTOR
all of the data he had downloaded. JSTOR itself, the
ostensible victim of Swartz’ misconduct, released
a statement indicating that it would not bring a civil
copyright infringement suit against him and did not support a
criminal prosecution. Nevertheless, the United
States Attorney in Boston pressed forward with the prosecution. Swartz was indicted, not for
violating Section 506(a), but for quote wire
fraud, computer fraud, unlawfully obtaining information
from a protected computer, and recklessly damaging a
protected computer closed quote. In a press release
accompanying the indictment, the US Attorney announced that
quote, if convicted on these charges, Swartz faces up to 35 years
in prison to be followed by three years of supervised
release, restitution, forfeiture, and a fine of up to $1 million. Swartz’ lawyer sought to
negotiate a plea bargain. The prosecutors reportedly were willing
to accept a deal under which Swartz would serve only six
months in jail but no less. The lawyers failed to come to terms. A trial loomed. In January of this year, at the age
of 26, Swartz committed suicide. Several forces and
circumstances undoubtedly contributed to his
decision to end his life. But one of them,
undoubtedly, was anxiety caused by the ongoing prosecution
and the prospect of a trial and likely conviction and imprisonment. His suicide could and
should have been avoided. To be sure, Swartz most
likely had committed a crime. Owen Kerr a specialist
in this field, may well have been right when he wrote,
“All of the charges against Swartz were based on established case law. Indeed, once the decision to
charge the case had been made, the charges brought here
were pretty much what any good federal prosecutor
would have charged.” Close quote. But one of the crucial
responsibilities of a prosecutor is to decide not just when successful
criminal prosecution is possible but when it is appropriate. Prosecutors, as we’ve seen, have
discretion not to bring charges at all, to bring lesser charges than they might,
or to accept lenient plea bargains. This is just the sort of case in
which the exercise of such discretion is warranted, even demanded. Swartz’ motives were
altruistic not mercenary. He had no interest in making money. His goal was to make scholarship
more widely available. The contrast between
his motives and those of all the other defendants I
canvased a few minutes ago is stark. JSTOR, the victim of
his unlawful behavior, acknowledged that JSTOR had not been
harmed and sought no civil remedy. Now, to repeat, Swartz was
certainly not blameless. Arguably, his actions were misguided. A colorable argument could be made
that the uncontrolled dissemination of scholarly articles that
he sought to accomplish would have seriously disrupted the
business of academic publishing and thus threaten several the
interest that this course has sought to highlight. A better, more responsible way of
making scholarship more widely available would have been either to seek
reform of the copyright statute or the rules that govern
governmentally-funded research. Or as my colleague
Stuart Shieber has done, to persuade professors
or their universities to insist that academic articles be
posted on publicly available websites. In short, the methods that
Swartz chose to pursue his vision may well have been wrong. But there’s a big difference
between misguided idealism and the sort of
self-serving piracy at which the criminal statutes
are primarily aimed. Perhaps some sort of criminal penalty
was warranted in this case, perhaps a deferred prosecution
agreement which would have been effective in
preventing Swartz from engaging in similar conduct in the future. Perhaps. But certainly not six months in jail. In short, the prosecutors in this case
failed to exercise their power wisely. I know and respect one
of those prosecutors. He’s not a cruel person. But he and his colleagues
acted irresponsibly, and the result was tragedy. From that tragedy, at least
two lessons can be drawn. First, criminal sanctions are
both formidable and dangerous. They have important social functions,
but their power makes them risky. The hazard that they will be
imposed in appropriate circumstances is exacerbated by the large
and increasing diversity of the sets of circumstances, and
the kinds of technologies implicated by copyright law, and
the kinds of activities that may constitute
copyright infringement. It’s impossible for legislators to
anticipate all of those circumstances and to differentiate them on the
basis of the severity of the harms they threaten and consequently the
severity of the sanctions they merit. It’s, thus, imperative
that the people who control the machinery, the
criminal law exercise their power sensitively and wisely. The second broader point is that
the copyright system as a whole is an extraordinarily
complex and powerful machine. As I hope you now see, it
affects myriad dimensions of the global economy and culture. It seeks, simultaneously, to
advance many different social goals and to protect many different rights and
freedoms, some of which are intention. Effectively operating a machine
this complex and important requires care and, again, wisdom. When tuned intelligently
and deployed thoughtfully, copyright has enormous
and growing benefits. If it is out of tune or deployed
thoughtlessly, it can cause great harm. My ambition in this
lecture series has been to provide you the information
and analytical tools you need not just to understand the
copyright system as it currently exists but to participate in the ongoing
project of adopting that machine to deal responsibly with changing
social and cultural circumstances. I hope you have found the
lectures helpful in this regard. Thank you for your
patience and attention.

6 comments on “William Fisher, CopyrightX, Lecture 12.3, Remedies: Criminal Penalties

  1. Thank you for this series Terry, but at its conclusion I can't agree with yours that the copyright machine needs only fine tuning to restore it to the useful function its rapid expansion and bloat has impaired, if it actually ever possessed it. Thank you especially for making it inclusive and unencumbered, and I find it ironic that I only discovered this series after the hammer of ContentID had fallen on you too.

    Your careful and even-handed examination only emphasises the degree to which copyright has become a fatberg clogged cloaca of special pleadings, misplaced parentalistic impulses to protect, and a tool of greedy incumbents unwilling to face the facts of their decline.

    No less than four theories of IP struggle to justify to cost of this imaginary edifice, and like you I strongly favour the culture model.

    Everything about copyright's ills was said and latterly ignored by Thomas Babbington Macaulay, in 1841

    Tinkering isn't going to change the fact that copyright is not an efficient or useful machine in an age of cultural abundance, it is a tool to bind the present to serve the past, and the limited times get longer and longer, the ambit broader and broader. As you note en passant regarding remedies, copyright is about money, and the endless search and appropriation of more and more rights to money to feed the beast.

    Attempts to rehabilitate the grotesque that copyright has become by protecting the rights of indigenous peoples (failed because those cultures are not about exploitation and exclusion), or throw a bone to the visually impaired have all come too little and too late.

    If I had to characterise copyright now, only fiction would suffice. Copyright used to remind me of Shelob, until I met Ungoliant. The end of copyright is probably going to be similar to hers, "It is said that Ungoliant ultimately perished at her own hands when, in her growing and eternal hunger, she finally devoured herself."

  2. Thank You Sir for this enlightening series..Hope the learning will help me to explore new horizons in near future in field of copyright…

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