In medieval days, a peasant could be executed for stealing a crust of bread, while the lord of the manor could abuse every peasant in sight without fear of legal retribution. Does it strike you that we seem to be reverting more and more to a similar society, one in which the punishments no longer fit the crimes?
This was the thought I couldn't shake as I read last week about Congress passing an ugly hodgepodge of "copyright protection" laws called the Family Entertainment and Copyright Act of 2005. Among other things, the law considerably lowers the standards for what constitutes criminal copyright infringement. Peer-to-peer file sharers deemed to have distributed $1,000 worth of movie or music files in a six-month period can face up to three years in prison. Just the act of camcording a movie in a theatre, rather than actually distributing it for a profit, also merits three years. And theatre owners have civil and criminal immunity for doing whatever is "reasonable" to detain any suspected infringer.
OK, copyright infringement is a bad thing, but isn't this going a little too far? In fact, our whole justice system seems to have lost its sense of proportionality. "Something is seriously out of whack," a legal scholar I know wrote recently. "Just the other day, there was a federal court judge that caviled against being required under federal mandatory sentencing guidelines to sentence a man convicted of pot possession to 55 years. Now there actually are mandatory minimums in connection with criminal conviction for copyright infringement. How will such provisions compare to those for bank robbery, assault or other violent crime? What is minimum for a 15-year-old file sharer -- or parent of same under the MPAA and RIAA quested laws -- compared to that of an Enron executive guilty of securities and other frauds that helped wipe out the retirement funds of so many?"
After all, the music and movie industry moguls who spend so much time and money getting Congress to do their bidding are not without sins of their own. Just as an example, last month Time Warner -- a corporation with a foot in both industries -- agreed to pay a $300 million fine to the SEC to settle civil fraud charges. It had earlier paid $210 million to get the DoJ to go away on criminal fraud charges involving some of the same accounting shenanigans. Time Warner just had to pay this chump change rather admit guilt, in spite of the fact that, as one SEC officer noted, some "of the misconduct occurred while the ink of a prior Commission cease-and-desist order was barely dry." Oh, by the way, the Time Warner CFO, Controller, and Deputy Controller also agreed to never do such nasty things again. But apparently they don't face jail time, or even fines, and they're still working for Time Warner.
So it's possible some of the same Time Warner officials who have been caught once or twice robbing investors in the past could be doing so again even as we speak. Of course, last week they may have been too busy passing out rewards to their minions on Capital Hill, or perhaps they were involved in all those lawsuits the MPAA and RIAA were filing to harass the researchers developing the Internet2.
Even if we were to believe the exaggerated estimates the various copyright industries put forth for how much they lose to piracy each year, is it as much as the Enrons, Worldcoms, Adelphias, etc. cost us the economy? Notice also that while Congress is mandating increasingly severe punishments for the copyright equivalent of petty theft, it can't be bothered to do anything serious about crimes like identity theft that are costing millions of citizens billions of dollars. With powerful lobbying from the RIAA and MPAA, federal law enforcement agencies have no problem getting funding for enforcement of copyright crimes, but individuals who've had their bank accounts cleared out by a clever phishing scam have nowhere to turn.
If left up to our political leaders, one wonders how long it will be before having file-sharing software on your computer will be a capital offense. "When the MPAA and RIAA are allowed to manipulate the law into substituting elephant guns for flyswatters, how can their be any respect for their legitimate rights, for intellectual property, or the legal process in general?" writes my legal scholar friend. Let's punish criminals, but let's punish them in proportion to the harm their activities do us all, not just the perceived interests of a few influential parties.
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