Here’s another important Copyright Week post from the Electronic Frontier Foundation: Mitch Stoltz looks at the brutal penalties for copyright violations: “What if a single parking ticket carried a fine of up to a year’s salary? What if there were no way to know consistently how much the fine would be before you got it? And what if any one of hundreds of private citizens could decide to write you a ticket?”
Something very close to this scenario is a reality in copyright law. Copyright holders who sue for infringement can ask for “statutory damages” and, if they win, let a jury decide how big of a penalty the defendant will have to pay—anywhere from $200 to $150,000 per copyrighted work. That’s a big problem for Internet users, and everyone else who wants to use creative works in lawful but non-traditional ways. Authors of remix video and fan fiction, bloggers, coders, entrepreneurs and others who create, inform, and empower on the fuzzy edges of copyright law must gamble every day. They risk unpredictable, potentially devastating penalties if a court disagrees with their well-intentioned efforts.
People from across the spectrum of opinion on copyright—including many who generally support more restrictive copyright law—agree that copyright damages are broken and need fixing. In today’s House Judiciary Committee hearing on the scope of copyright, Professors David Nimmer and Glynn Lunney agreed on almost nothing—but both agreed that copyright’s penalty regime makes no sense today.
Different from almost all other areas of the law, plaintiffs in copyright cases don’t have to present any evidence that they were harmed. And aside from setting some broad ranges of amounts for “willful” and “innocent” infringement, the only guidance that the Copyright Act gives to juries in picking an amount is to say that it should be “just.”
Copyright Week is a worldwide effort to fix copyright: here are the six principles you can sign onto.
To Safeguard the Public Domain (and the Public Interest), Fix Copyright’s Crazy Penalties