Sunday, May 12, 2019

Digital Theft Is Like Selfish Motoring. Really? (A Rant)

EFF compares the unlawful practice of reproducing and distributing copyrighted works in violation of the lawful rights of copyright owners (copyright infringement) to bad driving (a civil traffic infraction).

EFF also calls anyone who would protect and preserve their copyrights "a troll", but name-calling is not remarkable. It is a pity that digital theft of intellectual property is equated with selfish non-adherence to driving or parking rules.

They tell their followers "prevent copyright trolling: tell your Representatives that copyright claims can't be treated like traffic tickets."

Is that an accurate representation of the C.A.S.E. Act? How are traffic tickets treated?

Wiseman Trial Law blog explains what happens to a person who commits a traffic offense and is spotted and stopped by an officer of the law. The driver either constructively admits guilt and pays a fine, or they go to district court to dispute the grounds for their "ticket".

If they are repeat offenders, what might have been a civil infraction for a first timer becomes a criminal felony, for example if they were driving (badly enough to be stopped) while knowing that their license to drive had been suspended.

Under current copyright law, the statutory penalty could be as much as a $150,000 fine per instance, but the copyright owner would have to identify the infringer and take him or her through a federal court case at enormous expense (estimated at around $350,000 for the copyright owner) and long term inconvenience for both.

If the C.A.S.E. Act becomes law, the fine for the infringer would be capped at $15,000. Is that comparable with traffic ticket fines?

EFF suggests that one individual Claims Officer would award damages, but the Act discusses a small claims court, with a Claims Board of three Claims Officers to hear both plaintiff and defendant.

One similarity might be the "three strikes" idea. With traffic tickets, if you get too many points on your license, at some point, your license is suspended. With the DMCA, in theory, repeat offenders are supposed to be banned from some internet access.  In practice, few platforms ban repeat offenders, and there are no measures to prevent banned individuals from rejoining with a new name and a new email address.

Keith Kupferschmidt blogs about the problem of the platforms whose business models reward their wilful blindness to the piracy from which they profit.

There can be no working together as envisaged by the DMCA, when copyright owners know that works are widely pirated, and that take down notices are an endless, fruitless cycle of whack-a-mole, but the platforms insist that the take down system works perfectly.

In haste,

Rowena Cherry

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