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.
