Controversial Section of PRO-IP Act Cut

I Don't Believe in Imaginary Property writes "Rep. Berman (D-CA) has removed the controversial section 104 from his PRO-IP Act. That section would have multiplied the already excessive statutory damages for infringement in the case of compilations, making the damages for infringing upon the copyrights of a single average CD rise into the millions of dollars. This change came after proponents of the amendment were unable to cite even one case where the statutory damages recovered were insufficient. But don't let the article fool you into thinking that the PRO-IP Act is no longer controversial now that this one section is gone, the act still creates copyright cops who are authorized to seize people's computers."

Comments

Time for the old Dead Man's Switch

[Gothmolly]

Nothing Cryptonomicon-esque, just some s/w will do the trick. Sieze away, Mr. Gestapo. All sorts of nice 1s and 0s for you to look through.

Re:Time for the old Dead Man's Switch

[Wordplay]

No, he's informed. What's your excuse?

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

"The U.S. Supreme Court has ruled that the right against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924))."

And more specifically,

http://www.sorrelsudashen.com/papers/Fifth_Amendment_Right_Against_Self_Incrimination_in_Civil_Cases.pdf (pdf)

McCarthy v. Arndstein, 266 U.S. 34 (1924) Privilege against self-incrimination under the Fifth Amendment "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it."

If copyright violation didn't have a criminal component to it, you might be right. But it does, particularly since the DMCA specifically criminalized copyright violations of digital material.

Re:Time for the old Dead Man's Switch

[The Master Control P]

The main point of TrueCrypt (as I understand it) being that it's impossible for the prosecution to provide any evidence that what they see isn't everything you've got. No evidence you aren't complying = no leg to stand on.

Me? I'd keep anything "they" are after on a mini-sd card (hell, they're so small you can almost legitimately claim that you lost it). If all else fails and you get a suprise warrant at 3am, you could even stick it up your ass as a last resort. As long as you don't do something stupid like put the card in /etc/fstab or (more likely) fail to scrub /tmp before powerdown you win: There is no evidence what so ever that the files in question were ever present.

Re:Time for the old Dead Man's Switch

[mazarin5]

Testimony, not evidence. Consider that you can be compelled to give a blood sample for DNA evidence. They can even arrest and restrain you and forcible extract the blood. This is not considered self incrimination by the court. A password is not testimony, it's necessarily to the acquisition of evidence.

Of course, this must have been tested at some point. Are there any law scholars that can provide a more specific example?

Re:Time for the old Dead Man's Switch

[HTH NE1]

If they need someone's files to convict someone else, they can grant immunity for anything found in those files that may incriminate the owner to negate the Fifth Amendment barrier.

However, they still have sneaky tricks, like only granting immunity at the state level and not federal, or not international so you're effectively barred from travel to certain countries for, say, having cartoons of a particular religious leader. And they'll still put you on their radar in case you acquire any similar incriminating thing later, which will be a separate crime(*). And then there's that whole confiscation issue too.

(*) I don't think "fruit of the poisonous tree" applies. If someone with immunity testifies to a murder, it's a matter of public record and that person will still be looked at as a suspect for other, similar murders. Immunity does not grant freedom from suspicion. Further, you can be compelled to testify if granted immunity from prosecution even though testifying will still get you killed; witness protection is not perfect nor is it a cushy life forever. Nor does prison for contempt for refusal to testify guarantee continuity of your life.

Unless there's some way to make disclosure under an evidentiary seal requiring anything self-incriminating be treated as it never existed. And reality still just doesn't work that way.

You make a good point.

[Anonymous Coward]

You have a good point, but I assume the copyright crowd is going at this from a couple of angles:

A) Actual damages are quite hard to prove in court, which is the point of creating statutory damages. They might not even bother asking for them, lest they have to justify what actual damages they've suffered from infringement. Of course, they may not have suffered any actual damages, or may not be able to prove that they have.

B) While they're not punitive damages, they're high enough that they can be seen in that light. As such, they could be an insufficient penalty.

That said, $150,000 for infringing upon an average 10-song CD that goes for $20 retail and $10 on iTunes is already unconstitutionally excessive per a Supreme Court ruling (BMW v. Gore) that looked askance at some statutory damages that were merely a few times the actual damages. The PRO-IP Act here would raise that to $1,500,000 ($150,000 for each song on the CD), which is even more excessive than before.

After all, how many copyrighted works sell for $150,000 to begin with? And don't list long-dead painters. Their works hit the public domain long before copyrights got an extra hundred years or more of life with the life+70 term passed back in the 1970s.

- I Don't Believe in Imaginary Property

Re:War on Copyright

[QuantumRiff]

The sad thing is, that 1% of the population is already in jail. The highest incarceration rate in the world. But we think were safer. Do you think a 10-fold increase in people in jail will lead to an overhaul of the system, or just become a nice way to ensure lots of jobs as Prison Guards for the local economies?

Re:I remember

[ultranova]

The fact that this country would even talk about being okay with indefinite incarceration without charge and torture (let alone actually allowing or making it fucking policy) is disgusting and unbelevable and would have never been possible without this scheme.

Millions of slaves, many of which belonged to those very founding fathers who wrote your constitution, might disagree.

The simple fact of the matter is that the US has always had a shining outside and rotten core. This is understandable: the reason oppression exists in the first place is that it is profitable to the oppressor, at least in the short term. Your founding fathers threw out their oppressors, true; but they were merely human, and thus unable to resist the temptation to become oppressors themselves.

Indiands, blacks and communists; it is merely that the powers that be have run out of other targets, so it is time for Joe Average to feel the boot on his face. Unfortunate for Joe, but hardly unexpected, given the history of the United States and the difference between its ideals in speeches and reality.