Digital Piracy and Law

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History of Copyright Law

The chain reaction that instigated copyright regulations dates back to the fifteenth century. Gutenberg’s printing press marked the beginning of a new era of information distribution. True, this device facilitated the mass production and dissemination of human knowledge; however, it also carried repercussions. The formerly tedious task of duplication by hand was sped up to a rate that warranted tighter controls. When this technology arrived in England, the "need for protection of printed works was inevitable." [1] In 1710, the English Parliament passed the first official law concerning copyrights. The Statue of Anne "established the principles of authors’ ownership of copyright and a fixed term of protection of copyrighted works." [2] Almost three hundred years have elapsed since this passing of this statue. Although some ideological remnants still remain, today’s US copyright law "has been revised to broaden the scope of copyright, to change the term of copyright protection, and to address new technologies." [3]

Present day US copyright regulations stemmed from the first days of nationhood. When America’s founding fathers composed the United States Constitution in 1787, they gave Congress the power "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." [4] This line of text in Article I, section 8 bestowed upon the State fundamental rights to a monopoly over the copyright industry. It was the government’s job to asset, distribute, and control all copyrights. "The First Congress implemented the copyright provision of the U.S. Constitution in 1790," modeled quite similarly to the Statue of Anne. [5] Since then there had been three major revisions which occurred in the years 1870, 1909, and 1976.

Copyright in the Digital Age

With arrival of the digital age, Congress amended the copyright act to "prohibit commercial lending of computer software" in 1990. [6] This revision did not solve all the problems, for technology was evolving at a rapid pace. Computer savvy individuals were finding ways to bypass government copyright regulations. For example, under copyright laws up to the No Electronic Theft (NET) Act of 1997, people who intentionally distributed copyrighted software without receiving monetary benefits could not be prosecuted. The NET Act amended this loophole. [7] Following NET, 1998 was also a big year for copyright in the technological realm. The ’98 Digital Millennium Copyright Act (DMCA) laid the foundations for RIAA’s cases half a decade down the line. Besides making "it a crime to circumvent anti-piracy measures built into most commercial software," the DMCA most importantly "limits internet service providers from copyright infringement liability for simply transmitting information over the internet." [8] Known as the "safe harbor provision," DMCA Title II (OCILLA) creates a "safe harbor" for internet service providers (ISPs) from being liable for content stored or transmitted via their servers as long as they take swift steps to remove the copyrighted content when asked. This Online Copyright Infringement Liability Limitation Act also gave plaintiffs the right to subpoena user information from the ISPs to carry out individual lawsuits.

As of January 2007, there are two portions of the United States code detailing domestic copyright regulations. USC Title 17 provides a comprehensive breakdown of every copyright guideline while section 2319 of Title 18 lists possible consequences for criminal infringement of a copyright. Under these laws, not everything conceived by the mind is eligible for copyright. According to chapter 1 section 102 of Title 18, the United States copyright law protects "original works of authorship fixed in any tangible medium of express." [9] This includes "literary, musical, dramatic works, pantomimes, choreographic, pictorial, graphic, sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works." [10] Ideas, not yet formulated on such "tangible mediums," thus, do not qualify. When a work is classified as copyrighted, section 106 of chapter 1 gives only the proper owner of the work the rights to reproduce, prepare derivate works, distribute, publicly perform, and publicly display the creation. In addition, these exclusive rights must be granted by the owner in order for third parties to use the copyrighted material.

When one or more exclusive rights such as the ones listed above have been breeched by an individual or a corporation, this respective party is considered to have committed a "copyright infringement." Although there are limitations to the power of these exclusive rights, such as cases where the violation has been deemed legitimate under the four conditions of "fair use" or other exceptions for special educational organizations, in most cases where the copyrighted content has been duplicated and/or distributed without the prior consent from the owner, infringement most likely occurred.

Consequences for infringement vary from case to case. The prosecution may choose to sue for measures at its discretion; however, the US Code does outline maximum and minimum sentences for different scenarios. Section 504 for Title 17 allows for the plaintiff to charge the defendant for actual and statutory monetary damages. Detailed evidence proving losses directly linked with the case is needed to recover actual monetary damages. As for statutory damages, the allowable compensation range from $200 to $150,000 per each infringed copyrighted work. If the prosecution can further prove that the defendant has used the copyrighted material either "for purposes of commercial advantage or private financial gain" or have reproduced or distributed content "which have a total value of more than $1,000," criminal charges found in section 2319 of Title 18 may apply. According to this section of US Code, if the defendant has been found in violation of copyright for personal financial gain, the maximum sentence is 5 years imprisonment for the first offense. Similar subsequent offenses carry 10 years imprisonment per offense. If the defendant has been found in violation of copyright for which the content had a total value more than $1,000, the maximum penalty is 3 years imprisonment for the first offense and 6 years for each additional offense in the future. These criminal charges are additions to monetary damages incurred from section 504 and even possible attorney fees of the plaintiff’s party from section 505 of Title 17.

Fair Use

The United States Fair use doctrine is a method of defense that can be employed when an individual is being accused of copyright infringement. Fair use allows for legal incorporation of copyrighted content in a new piece of work without prior agreement from the original author. [11] United States Code, Section 107, states usage of another's work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." However, because this law can be applied to situations with drastically different circumstances, the ruling of a specific case is hard to discern. To solve this problem, Section 107 "Limitations of exclusive rights" lays down four factors to be considered when judging the validity of Fair use: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work." [12] The judge presiding over a case involving Fair use must weigh these four factors in a balancing test.

Fair use Copyright infringement
Advances public knowledge Fails to do so
Transformative use Less transformative use
Little to no commercial use Commercial use
More creative, less purely factual Less creative, more purely factual
Copying published works Copying unpublished works
Small portions of the work copied Huge portions of the work copied
Derivative work does not harm potential market Derivative work harms potential market

There are four main factors that determine whether or not a case can qualify as fair use. Factor one -- "purpose and character" states, if the usage of a work advances public knowledge, is very transformative, and has little to no commercial purposes, then it is easier to argue for fair use. Factor two -- "nature of the copyright work" states, more creative, less purely factual usages of published works have stronger protection against copyright infringement. Copying unpublished works without the author's consent usually weakens the defendant's case for fair use. Factor three -- "amount and sustantiality of portion defendant used" is more straightforward than the first two factors. The larger the portion of copyrighted work used, the more prone the ruling will be in favor of copyright infringement and vice versa. The final factor -- "effect of defendant's use on potential market of copyrighted work" plays the most important role in determining the right to Fair use. If the derivative work endangers the original work's potential market opportunities, then the court will most likely be in favor of the prosecution. Criticism or parodies that may put the original work in a bad light are allowed even though it might damage the potential market. [13]