Commentary: Current Copyright Law Is Enough

Commentary: Current Copyright Law Is Enough
February 9, 2012

Maureen Martin

Maureen Martin passed away on February 5, 2013. The Heartland Institute's page in tribute to her... (read full bio)

The sponsor of the Stop Online Piracy Act, Rep. Lamar Smith announced in late January he’s deferring action on the bill “until there is wider agreement on a solution.”

Maybe he’s just trying to save face after the Internet uproar against the bill at Wikipedia and elsewhere, but Smith, a Texas Republican, still seems to assume everyone agrees there’s a problem and it’s just that there is disagreement on a “solution.”

He’s wrong, and so is Senate Majority Leader Harry Reid (D-NV), who also deferred action on SOPA’s Senate companion bill, the Protect IP ACT.

‘Too Complicated for Amateurs’
SOPA is an entirely unnecessary and abusive law for two reasons.

First, it improperly places on Web sites the impossible burden of determining what is protected by copyright and what is not. This is not a rookie task. Many lawyers specialize solely in this field to the exclusion of all other legal areas.  Understanding and applying copyright law is a full-time job, too complicated for amateurs.

Just consider:

Anyone may claim any work is copyrighted, but only certain materials are actually entitled to such protection. A fact or compilation of facts cannot be copyrighted, unless there is a “creative” or “original” act leading to the compilation. And only the work expressing an idea is copyrightable. The underlying “idea” is not.

Try applying this. It’s not simple. The U.S. Supreme Court has held, for example, the compilation in the “white pages” of the telephone book may not be copyrighted.

And then there’s the fact there is no definitive way to tell if material is actually copyrighted. That’s because the copyright attaches immediately upon creation of the work involved. It can be registered with the U.S. Copyright Office but doesn't have to be. The work may have copyright protection even if it doesn't include the © symbol.

So the question of whether a particular work is entitled to copyright protection and actually has it is a tangled one. Courts deal with this routinely in actions brought by copyright holders (or alleged copyright holders). SOPA would place this burden on Web sites using the material involved, even innocently.

Existing Laws Are Adequate
Second, existing copyright laws are entirely adequate to protect copyright holders.

Such holders are entitled to file suit against alleged infringers. This sounds more burdensome than it is, because the “loser pays” in such cases.

Copyright holders do not have to prove actual damages, because statutorily provided damages, ranging up to $300,000, are available. In addition, the winner normally will recover any reasonable attorney fees involved in bringing the lawsuit. Valid copyright cases not only pay for themselves but can in fact be a profit center.

SOPA would authorize the Department of Justice to ask a court to issue an order, not just against alleged infringers but also against Web sites linking to them. It would also empower courts to prohibit such Web sites from conducting business with alleged infringers. It would criminalize streaming of protected content. I have seen no evidence SOPA or its clones are needed.

Enormous Damages Sought
The best evidence SOPA is unnecessary came the day after the so-called SOPA Strike, when the U.S. Department of Justice announced the criminal indictment of seven individuals and two corporations operating Web sites  (Megaupload Limited and Vestor Limited) for alleged “massive worldwide online piracy of numerous types of copyrighted works.”

DOJ’s action was brought, it’s important to note, under existing law, not under SOPA.

The damages sought are enormous.

DOJ alleges the defendants ran “an international organized criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works.” The alleged infringers gained $175 million in “criminal proceeds” and caused more than $500 million in damages to the copyright holders, according to the indictment. DOJ claims its case is “among the largest criminal copyright cases ever brought by the United States.”

DOJ is absolutely right.

Beyond that, DOJ is seeking criminal penalties against the individuals, which could lead to their imprisonment for 20 years or more.

So the question must be asked: How much government power is too much government power? The answer: SOPA is too much.

Maureen Martin (mmartin@heartland.org) is senior fellow for legal affairs at The Heartland Institute.

Maureen Martin

Maureen Martin passed away on February 5, 2013. The Heartland Institute's page in tribute to her... (read full bio)