As mentioned in the previous item, I was honored last weekend to speak at the Virginia Journal on Law and Technology (VJOLT) Symposium, "Real Law and Online Rights."
I'd expected an argument. The vast majority of copyright lawyers today are employed by copyright holders. Instead, I was given the lead-off slot, the small congregation nodded in time to my music, and the speakers all advocated a balanced view of copyright and patent law.
One of the best (in my opinion), was Geraldine Moohr, who teaches at the University of Houston Law School, a short bike ride from my old stomping grounds at Rice. She based her talk on a paper she wrote last year on copyright criminal law.
The short version. It doesn't work. "There is a lack of a social norm that would condemn personal use infringement," she said. "Civil penalties may be good enough. They have a a punitive quality to them."
The reason the copyright industries pushed for criminal sanctions was to make the government pay to enforce their rights, Moohr noted.
"What is the purpose of copyright?" she asked. "Allocating all the profits to a copyright user is a commercial use. Personal use for the end user is not going to compete with the copyright holder. It's only an injury if the copyright holder has lost a sale," and studies on that question are inconclusive. While studies by the industry claim major losses, studies by third parties note dispuate this. Besides, It is possible to have a property right you don't enforce with criminal law."
Moohr added something I've written here many times, that the Copyright Wars have something in common with Vietnam. "The rhetoric is important. Piracy vs. sharing is a battle for hearts and minds." Copyright remains, despite the laws, a political struggle.
What can be done? At minimum, she suggested, raise the loss threshold needed to trigger the criminal law. Or make it an actual loss, rather than a retail loss. While this might seem to let street-level DVD dealers off the hook, the civil penalties should still be enough to "turn" these people against their suppliers. And it's the people who are making money from copyright material, who are selling fake CDs and DVDs on the street, who are the problem, not the file sharers.
Dana Blankenhorn has been a business journalist for over 25 years and has covered the online world professionally since 1985. He founded the "Interactive Age Daily" for CMP Media, and has written for the Chicago Tribune, Advertising Age, and dozens of other publications over the years.
1. Brad Hutchings on February 21, 2005 03:32 PM writes...
Today on MacInTouch, it was reported that someone broke the eSellerate end-user registration engine and have been trafficking the crack on the net, including at a known crack site "MSJ". Hundreds of Mac software developers use the eSellerate engine for resgistration numbers. Their software is now, for all intents and purposes, free. And at much lower cost of ethical reflection to the end user of the crack. Install once, run many.
Distributing this crack is out of the venue of personal use, fair or unfair. Yet it falls under Moohr's Suggestion as something that should not be criminal. Let's at least level the playing field. How about if we make taking a baseball bat to the cracker's head* legal? Put that on the table and I'm with you. The software industry knows damn well that registration codes increase revenues -- substantially. That's why we do it, not because we were all trained at the Registration Code Gestapo. So to say that studies of lost sales are inconclusive in the software domain is pretty clueless.
Anyway, the clue for software developers from the eSellerate crack is to roll your own DRM, from reg codes to server side activation system. Probably annoys users that they have to dig through e-mail to find codes for every program, but hey, that's what happens when the crackers don't have to fear the law or the baseball bat*.
(* Please note sarcasm.)
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