Words having meanings, but money talks.

The overheated rhetoric employed by the big content industries in their futile and probably suicidal battle against file sharing has been very detrimental to any hope for an improved understanding of copyright and intellectual property.  For example, in an age when real piracy has once again become an international concern, the use of term “piracy” for file sharing seems both inaccurate and offensively self-centered.  In a recent article in Information Today, K. Matthew Dames does a effective job of deconstructing this use of “piracy” and explaining why it really does matter what language we use to frame the problem of copyright infringement.

There is some irony in Dames’ article, however, in his use of “theft” as an alternative to “piracy,” as when he asks “should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?”  Black’s Law Dictionary, following a long common law tradition, defines theft as “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  This definition indicates why theft is also a poor word to use to frame the problem of infringement.  The characteristic of intellectual property that it can be shared without depriving the original owner of it, and that its value, in fact, depends on this ability to share copies, explains why legislators have always distinguished infringement from theft.  To infringe does not mean to “remove” the IP but to copy it.  Nor is there an intention to deprive the owner of the property, merely some of its value.  Since theft is a “specific intent” crime, IP is not treated as personal property (chattels) under the law, but in a conceptually different category which can be infringed but not stolen.

Why do these fine legal distinctions matter?  In my opinion, the greatest harm done by the rhetoric of piracy and theft is that it seems so absurd to many people that they discount the seriousness of infringement.  The ubiquity of file sharing today seems to prove this point.  By overreaching in their rhetoric, the content industries encourage many people not to take them seriously.  But infringement is a serious matter; it deprives someone of their rights, if not their property, and that is a matter the law should take seriously. The rhetoric of theft and piracy makes it too easy to laugh and scoff instead.

Nevertheless, the exaggerated language and claims of the content industries do have some effect.  For one thing, they can influence juries to get swept up in the overheated atmosphere created by talk of piracy and theft.  How else can one explain the verdict in the second trial of Jammie Thomas-Rasset?  When her first trial for downloading 24 songs without authorization ending in a judgment of $222,000 in damages, or $9,250 per song, the judge himself called that amount “unprecedented and oppressive.”  Now the second jury has assessed damages of $80,000 per song (although there seems to be no chance of collecting that money and indications that the RIAA will not try).  It is easy to conclude that the same rhetoric that seems so silly and inapt as part of an “education” campaign is very effective in the hothouse atmosphere of a courtroom; perhaps, indeed, that has been the point all along.  In any case, we will certainly hear a great deal more from the content industries trumpeting this victory and trying to deter even legal sharing with the threat of ridiculous damage awards.

In the meanwhile, Fred von Lohman of the Electronic Frontier Foundation raises the interesting question of whether this award of damages is constitutional.  The Supreme Court has struck down punitive damage awards in the past when they were considered so out of line with actual damages that they violated due process, and in the Thomas case the actual damages were less than $25.  So an award of almost 2 million is certainly out of line.  The problem is that statutory damages are different from punitive damages in an important way — they are written into a statute.  Excessive punitive damages have been found to violate due process because they are unforeseeable; a defendant in a relatively small case cannot imagine that they could find themselves liable for millions, and the decision to create such liability is made solely by a jury in the specific case.  The Court has found that reasonable foreseeability is a limit on a jury’s discretion in such situations.  In an infringement case, however, the range of damages is specified in the law, and a potential defendant should know the consequences prior to undertaking infringing activity.  There is not, in short, the same kind of due process problem in copyright cases.

This is one reason why I do not expect the award in the Thomas case to be challenged on Constitutional grounds.  The other reason is that the RIAA has already signalled that it is willing to settle for much less money; it wants to advertise the judgment but not appear like an ogre trying to squeeze blood from a turnip.  Perhaps the best reason for the RIAA not to try to collect here, however, is that it does not want to see either a court challenge to the Constitutionality of the statutory damages provision of the copyright law OR a legislative awakening to the obvious fact that these damages have gotten out of hand and should be reduced as a matter of good law and common sense.