The controversial Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) bills and their backers employ striking language to describe the problem they supposedly attack, namely “theft of U.S. property” and “IP theft.” They use that language to argue for sweeping new powers affecting the domain name system, Internet search, online advertising, and electronic payments.
It’s a great example of the way Hollywood chooses its words very carefully in constructing its propaganda wars. The old-fashioned and accurate word is “infringement,” but that word doesn’t create the visceral responses that “theft” does. So the bills refer almost exclusively to “theft.”
The trigger for this was Hollywood’s frustration several years ago that “file sharing” didn’t sound bad. After all, we learned in kindergarten that “sharing” is a good thing. The motion picture industry’s lead spokesperson, Jack Valenti, hated the term. He liked to compare a chocolate cake to files on the Internet: if you share some of your cake, you’re not supposed to still have all your cake, but when you share a file you still have the file. Thus, he argued, it’s not “sharing” at all. Of course, his inability to distinguish between chocolate cake and information — which is what music stored as bits really is – resembles Hollywood’s profound misunderstanding of the Internet today. One can indeed share information while keeping it.
Over the last ten years I have watched Hollywood loyalists, undoubtedly responding to some coordinated industry messaging directive, start talking exclusively about “theft” when they refer to infringement. One can tell who has signed on as a Hollywood partisan in the current debates by seeing who now uses the loaded term “theft” instead of the accurate term “infringement.” The facts that the bills overflow with references to “theft,” and that many government officials have changed their vocabularies to use the new, industrially correct language, reveal a lot about Hollywood’s capture of government.
When the big content companies talk about “IP theft” or “copyright theft,” what are they really talking about? The essence of theft is deprivation – when someone steals your wallet he takes your wallet away and you don’t have it any longer. But if I like your haircut and get one just like it, I haven’t stolen your hair. I have just copied it. Theft and copying are inherently different things.
But let’s stick with the “theft” concept for a while and see where Hollywood’s terminology leads us. What would “copyright theft” mean? How does one steal a copyright, which is just a form of ownership right? The same way one can steal someone’s real estate ownership, by forging a deed (or assignment) or tricking someone into signing one. That’s pretty rare. Looking at it differently, one can steal a copy of a copyrighted work, say by shoplifting a book. But neither stealing copyrights nor stealing books are the types of so-called IP “theft” that the pending bills try to stop. The bills try to attack reproductions (copying/downloading), transmissions (streaming), and other traditional forms of what has always been called “infringement.”
Under the “theft” conception of copyright law, what, exactly, is the deprivation when someone makes illegal copies? It really boils down to just one thing: money. Copyright infringement – renamed copyright theft — deprives the copyright holder of some of his or her expected profit from exploiting the copyright.
What are other, similar kinds of “theft” by depriving someone of expected money? Failure of a tenant to pay the agreed rent to a landlord is one. Parking in a parking space without putting money in the meter is another. Jumping the turnstile to ride on a subway without paying the fare is a third. (And, of course, failure of a studio or record label to pay artists or actors the promised contractual royalties for their work on a record or film is a fourth. But something tells me the studios and labels sponsoring the current bills won’t go near that topic. The bills don’t include rogue studios and labels in their scope.)
How do the civil damages or penalties for the different types of such “theft” compare? Failure to pay expected money under a contract doesn’t trigger a penalty: contract law usually says that a party can recover the money she expected but not punitive damages or attorneys fees (unless parties have specifically bargained to pay attorneys fees for a breach). Failure to pay rent usually requires payment of rent to cure the default. Failure to put money in the parking meter prompts a ticket for $60. In New York City, failure to pay the $2.50 subway fare results in a maximum fine of $100.
Copyright “theft” is a very different story. Copyright infringement statutory damages in civil litigation can be as high as $150,000 for infringement of a single work. Yes, a single work such as a single song with an iTunes download value of $1. A copyright holder can claim such statutory damages without needing to prove a single penny of damage or loss. Think such sky-high damages aren’t realistic? Think again. In the RIAA’s case against single mother Jammie Thomas, a jury awarded $1,500,000 for the download of 24 songs, with no proof that she had transmitted songs to others. The federal judge thought that was ridiculous and reduced the total award to $54,000 – and the RIAA and MPAA are now arguing strenuously on appeal that the jury verdict should return to the original figure, $62,500 per downloaded song.
If we take copyright law’s maximum-penalty-to-price ratio as applied to an illegal download, and apply that same penalty-to-price ratio to the New York subway, the maximum penalty for jumping that turnstile and avoiding the $2.50 fare would be $375,000 instead of $100. Copyright industries are on to a really good thing under current law. One could say it’s a steal.
And the copyright industries haven’t gotten their fill of penalties and enforcement powers. That’s why they are back in Washington today, enlisting an army of Senators and Congress members to give them more power in the PIPA and SOPA bills to distort the domain name system (supposedly dropped from secret amendments not yet released), to censor search results and online advertising, and to turn online payment systems into enforcers.
They say that the legislation targets “foreign rogue sites,” even though current copyright law has killed foreign rogues such as Grokster and Kazaa, and even though there are express provisions for suing persons within the US, and even though the legislation regulates American companies in numerous different ways. On five occasions I have asked the backers to identify any foreign sites that they have sued in the US without being able to secure legal relief to which they are entitled, and they haven’t yet given me a single example. They say that the legislation doesn’t change copyright law, but it creates new laws that distort the principles of current copyright law.
The backers are trying to rush this legislation through without truly open hearings with representation of a wide variety of interests, including the public interest. Read up on these bills and call your Senator and member of Congress to let them know whether you believe Hollywood needs more power.