Thursday, January 6, 2011

What is the cost of copyright?

Have you ever been to the Internet Archives Wayback Machine? It's pretty neat. There are copies of thousands of sites - more likely millions - dating back to mid-90's. I tried to find my old "Securely Private" blog there when I found out the provider that had hosted the A-J blogs was no longer hosting them. Unfortunately it had links to it, but the actual pages were missing.

When I was looking for my old blogs I looked at some other sites just out of curiosity. I don't remember what they were now. It didn't even occur to me at the time that what I was looking at was copyright infringement on a massive scale. Nate Anderson at Ars Technica looks at the Internet Archive's potential liability. How does he calculate that liability? He takes the figures from the Electronic Frontier Foundation (PDF). According to them:

As of December 18, 2010, the Internet Archive had 600 preserved images of the website for the Recording Industry Association of America (RIAA). Were the RIAA to sue the Internet Archive for copyright infringement based on these preserved images and prevail, the Archive would face up to $89 million in statutory damages, even absent a finding of actual harm or any reprehensibility. And these 600 images of the RIAA website are but a small drop in the large lake of information that the Archive has collected, which includes over 150 billion web pages. Based on this figure, if all copyright owners of those webpages (or a certified class of them) were to sue and prevail, the Archive would face potential statutory damages of close to 2,000 times the United States’ national debt.

The point of the whole exercise is that rewards in copyright infringement cases should reflect actual damages. It makes perfect sense. Why should someone who holds a copyright or other Intellectual Property rights get huge sums of money if they haven't actually suffered any harm?

That's not to say that there aren't legitimate infringement cases. But even those should have realistic penalties. The EFF contends that copyright infringement penalties as they've been awarded in the past are unconstitutional and ignore due process. They further contend that the extremely punitive damages hurt the intent of copyright law.

Article I section 8 of the Constitution lists among the powers of Congress the right (among other things):

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

The idea is to temporarily give authors and inventors exclusive right to the fruits of their labors, their intellectual properties (IP), then open the IP up to the world at large. That serves the dual purposes of providing incentive for original creation and allowing disseminating information for derivative works. What copyright has become doesn't really qualify as temporary.

If the intent was to provide temporary compensation to IP holders, then allow others to use them - both for the purpose of promoting the "Progress of Science and useful Arts" then it is likely true that the extreme punitive damages have the opposite effect that was intended when that clause was put into the Constitution. I know they would discourage me.