August 1, 2007
Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn’t the first time that Congress has taken up the DoJ’s copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.
This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don’t need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.
H.R. 3155 makes matters worse by allowing a judge to dole out damages for each separate piece of a derivative work or compilation, rather than treating it as one work — for example, copying an entire album could translate into damages for each individual track, even if the copyrights in those tracks aren’t separately registered.
This is particularly unfair because record labels register entire albums as single works principally to strip their artists of reversion rights they would otherwise enjoy if the songs were registered individually. (As some may remember from the 2000 flap over a stealthy RIAA amendment slipped into the Copyright Act, record labels register albums as “compilations” or “collective works” in an effort to characterize them as “works for hire,” which are owned outright from their creation by the labels, and thus can never revert to the artist.)
Let’s hope this bill meets the same fate as last year’s DoJ proposal and is stopped dead in its tracks. Take action now to stop it, and make sure you also support the FAIR USE Act, which would put much-needed limits on statutory damages.