Apparently, recognizing that the Copyright Act is in a need of a complete makeover, the Register of Copyrights, Maria Pallante, told a House congressional subcommittee that Congress should redo the Copyright Act. The Copyright Act has struggled to keep pace with the new technology and the realities of artistic expression. Recall that the White House announced that Americans should be able to unlock their mobile phones in order to allow them to freely move among any of the carriers. The White House's announcement came in response to the Copyright Office stating that unlocking a mobile phone could subject someone to civil and criminal penalties. Of course, that position by the Copyright Office created an outcry to reform the Copyright Act.
Of the three areas of intellectual property, the Copyright Act seems the most out of step with its goal of encouraging creative expression. Of course, Ms. Pallante wants to strengthen the enforcement capabilities of the Copyright Act. I understand that position, but I would caution that there needs to be some common sense inserted into the equation. Indeed, even Ms. Pallante seemed to understand this need for a more "balanced approach" to copyright enforcement. For example, while sharing a song with another would subject the sharer to the statutory damages for copyright infringement, there should be some acknowledgement that, by sharing that song, the sharer may be actually providing a benefit to the artist.
Consider this scenario: Jane Doe hears a song by Band X that she absolutely loves. Ms. Doe logs in to her iTunes account and searches for additional songs by Band X (she purchases additional songs by Band X and others similar to the sound of Band X by way of iTunes' suggestion features). In her enthusiastic state about Band X, she sends the song to her good friends, John Roe. John loves the song and he also searches and purchases additional Band X songs from iTunes. In this scenario, while Jane Doe technically infringed Band X's copyright, it does not make sense to enforce the statutory damage amount because she actually provided a benefit to Band X and other bands by purchasing additional music. The same holds true for sharing the song with John who makes additional purchases. I would hope that under this scenario, Congress can find a way to rework the Copyright Act to more accurately take in the facts of the case.
Now, do not get me wrong, I am not saying that the Jane Does of the world should be given free rein to steal the creative expression of a band or other artist, but there should be some mechanism for allowing the punishment to fit the "crime." Given the current state of Congress, I am fairly certain that any sweeping common sense re-configuring of the Copyright Act is not even close to coming to fruition. I hope I am wrong.