Late Wedesday (December 5, 2007), Representative John Conyers (D-MI), Chair of the House Judiciary Committee, introduced H.R. 4279, a bill designed to increase penalties for IP crimes. This is the officially-introduced version of the enforcement bill we've seen at least a couple of times before, and the companion of the recently-introduced S. 2317. Like those other bills, H.R. 4279 removes the registration requirement for criminal enforcement, allows higher statutory damages through disaggregation, and slaps together a slew of civil and criminal forfeiture provisions that require courts to confiscate computers and other devices from infringers.
These changes are unlikely to do a whole lot to stop infringement, and expand the chilling effect of harsh penalties on legitimate uses of copyrighted works. For instance, the disaggregation provisions are ostensibly there to further discourage infringement. Yet statutory damages are already so ludicrously high that inflating the numbers further doesn't really change individuals' cost-benefit analysis. For instance, if someone willfully uploaded three songs from a single album onto a P2P site, they'd currently face a penalty of up to $150,000. Under disaggregated damages, that'd be $450,000. Yes, that's a threefold increase, but it hardly has a threefold deterrent effect. How many people on a filesharing network are even worth the statutory damages for one song?
Yet what do these penalties do for someone thinking of making a fair use of works? Take, for instance this example, given in a letter sent by 25 IP law professors to Rep. Conyers. A filmmaker wants to make a documentary on the surf culture of California in the 60s and the film includes three short clips of the Beach Boys' music. Under the proposed Act, her potential liability suddenly balloons from $150,000 to $450,000. And unlike the average p2p filesharer, that may make all the difference in the world to her and her insurers. It will affect negotiations, whether in the licensing or settlement contexts. It will have a chilling effect.
On a smaller scale, imagine someone who is actually found to be an “innocent infringer,” liable for only $200 in damages. If that innocent infringement involved the photos from a single photo album of 48 shots, that $200 fine balloons to $9600.
The forfeiture provisions suffer from the same problem. The idea behind forfeiture for copyright crimes is to target large-scale commercial pirates. Evidently, in such cases, taking the expensive, dedicated machinery used for large-scale copying can be more of a deterrent than a monetary fine. However, an individual who isn't a large-scale criminal enterprise is likely to see the confiscation of a home computer with a CD burner as just another drop in the bucket against, say, a $220,000 judgment.
So the bill is a really misguided attempt at addressing copyright enforcement issues. A more reasonable solution would be to note the curious state of affairs where we have such massive damages applied to an incredibly wide range of conduct, and the chilling effect that such damages provisions have instilled in our culture.