Criminal infringement?

A colleague has recently posted a comment wondering about the impact of a piece of legislation suggested to the Congress this week by Attorney General Gonzales’ office, the “Intellectual Property Protection Act of 2007.” In a letter sent to the Speaker of the House and the President of the Senate, the AG proposes a series of amendments that would increase the enforcement of, and penalties for, criminal copyright infringement.

For most of our history, copyright has been an entirely civil matter, where an aggrieved party would sue the infringer directly for money damages and, sometimes, an injunction to stop the infringement. Only in recent years have we included criminal infringement in the law, where the government itself prosecutes the infringer and penalties can include fines and jail time. Most infringement is still handled through civil suits, but section 506(a) of the Copyright Act now defines criminal infringement in pretty broad terms. For infringement to be prosecuted as a crime, it must be willful, done for commercial advantage or financial gain, and involve either the copying and distribution of works with a total retail value of $1,000 or more or the distribution of a commercial work on a public network. This definition is broad enough to catch many activities like file-sharing in the criminal net, as it is intended to do, but it could also conceivably be used to prosecute other activities that occur in higher education, if the courts were to interpret “willful” and “commercial advantage” broadly enough.

The proposed changes to the law of criminal infringement include increasing penalties (up to life imprisonment for counterfeiting activities that result in a death), including “attempted infringement” as a new offense, giving wiretap authority for infringement investigations and making it easier for authorities to seize materials used in criminal infringement.

While some of these changes seem like a bad idea to me (like the notion of attempted infringement), it is not clear what impact they would have on the fair use provision that is so important to higher education. Presumably a reasonable reliance on fair use would defeat the willfulness requirement for criminal penalties to apply. My broader concern is that the increasing treatment of copyright infringement as a criminal offense is fundamentally opposed to the purpose of intellctual property law as expressed in the Constitution. Congress is allowed to make law around copyrights and patent rights in order “to promote the progress of science and the useful arts.” This justification reminds us that intellectual property is a public good and is thus different from physical property. Once we start treating copyright law as protection for a purely private property interest, similiar to laws against car theft, we step outside the rationale for federal action. Criminal law is usually a matter for the states, and Congress should remember that the reason it is given the power to legislate in this area is precisely because more is involved in copyright than mere private interests.