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UK Gov't Asks: Is 10 Years In Jail the Answer To Online Pirates?
An anonymous reader writes with a link to this piece at TorrentFreak: Physical counterfeiters can receive up to 10 years in jail under UK copyright law but should online pirates receive the same maximum punishment? A new report commissioned by the government reveals that many major rightsholders believe they should, but will that have the desired effect? A new study commissioned by the UK Intellectual Property Office (IPO) examines whether the criminal sanctions for copyright infringement available under the Copyright, Designs and Patents Act 1988 (CDPA 1988) are currently proportionate and correct, or whether they should be amended. While the Digital Economy Act 2010 increased financial penalties up to a maximum of £50,000, in broad terms the main 'offline' copyright offenses carry sentences of up to 10 years in jail while those carried out online carry a maximum of 'just' two.
What is the rationale for treating real property differently than other property? That's an assumption worth examining.
Is it because real property can be used to generate rent? Then copyright and patents are kind of like real property.
Is it because a person's ownership of real property imposes a burden on everybody else because it restricts what would otherwise be their right to use it? Then again, copyright and patents are like real property.
Why not make it a punishment that fits the crime, but per count? Put a realistic value on the illegal downloading. A song is worth (in the market) $1, so petty theft. A movie is worth, in the market, maybe $10 to $15. Again, petty theft. We don't put people away for 10 years for petty theft, no matter how many times they do it.
Instead, let the copyright owners sue for actual damages and let them make the case that they were actually out $1 for the illegal song download or $10 for the illegal movie download, or upload. Massive infringers could be put out of business. You uploaded a movie and provided it to 10,000 downloaders? You owe us $100k, and you're guilty of 10,000 counts of petty theft.
There's probably no good single explanation, but it might revolve around property tax being something of a usage tax for local government services that mostly relate to property, such as police, fire, and civil infrastructure in the local community.
I think in a lot of ways it's probably an inherited anachronism from an era before income taxes when towns or counties (in the US) needed a source of revenue to provide services. There was no income tax and few other ways to generate funds for local government.
Unfortunately, it's grown very regressive because property owners are taxed on the unrealized market value of the property. If you bought your house for $10,000 and it went up in value to $500,000 (less hyperbolic than it sounds in many places) you're stuck paying a tax on an asset whose value increase you can't realize without selling it and chances are your income hasn't risen as fast as your asset value.
A lot of elderly people on fixed incomes get pushed out of their houses because they can no longer pay the property taxes on houses they own outright -- their fixed incomes don't increase to match the increase in value and taxes.
There's all kinds of ways they try to fix this, like homestead exemptions and income tax based property tax refunds, but it just feels like a bad patch on an obsolete system.
That is precisely whom these heavy fines in Copyright law were intended to punish. Someone running a bootleg CD or DVD operation could stand to make thousands if not millions of dollars in profit. So the punishment had to be severe enough to discourage them. Otherwise they could just use a fraction of the profits to pay the fine as a cost of doing business.
The problem is, Hollywood has been abusing the law given to them to combat these cases, by applying it to "home use" filesharers. And the courts have been negligent in failing to toss that argument out the window. Proof? Just look at their argument in court. When they claim Jammie Thomas-Rasset "made available" songs for other people to download, exactly what are they saying?
By definition, the number of downloads of a fileshared song equals the number of copies uploaded. If 1000 people are filesharing a song, then they each want a single copy of the song, and a total of 1000 copies are made. If you can wrap your head around this amazingly difficult math, that works out to each single person being responsible for one illegal copy.
But in court the RIAA has been arguing that the one person is somehow responsible for the thousand copies made in total. What exactly does that mean? If you accept their argument, then that one person is responsible for the thousand copies so the other 999 people are not responsible. That is exactly the reasoning you'd use against someone running a commercial bootleg CDs operation. He sells 1000 copies of a CD. The 1000 people who bought CDs from him paid for them, so you can't really consider them guilty. Instead you make him solely responsible for all 1000 copies. That's what the law is designed to punish.
But this argument doesn't work against a single-use downloader. If the courts convict one person claiming she is responsible for the thousand copies made, then they convict the next person and claim he's also responsible for the same thousand copies made, and so on until they've convicted all 1000 people, what exactly has happened? In total they've convicted 1000 people of making 1 million copies of a song. But there were only 1000 copies of the song ever made! The math doesn't add up because the making available argument is wrong! It is fundamentally flawed. It is logically erroneous.
The courts should've spotted this flaw in the RIAA's "making available" arguments, but they haven't. Or they have and have failed to slap it down for the silliness it is. The legislatures badly need to revise copyright law to distinguish between commercial copyright infringement, and single-use home filesharing. What going on now is akin to the EPA abusing laws meant to punish companies illegally dumping toxic waste with millions of dollars in fines, and applying the same punishment to someone who fails to recycle a CFL light bulb (they release a tiny amount of mercury into the landfill when you throw them away in the trash).
Wedding photographers already went down this route. They used to shoot your wedding for a nominal fee, or even for free. Then they'd charge you for prints of the photos. If you wanted extra prints, they'd charge you extra. Then scanners came way down in price and people started just scanning and printing co