Not content with the current (and already massive) statutory damages allowed under copyright law, the RIAA is pushing to expand the provision. The issue is compilations, which now are treated as a single work. In the RIAA's perfect world, each copied track would count as a separate act of infringement, meaning that a copying a ten-song CD even one time could end up costing a defendant $1.5 million if done willfully. Sound fair? Proportional? Necessary? Not really, but that doesn't mean it won't become law.
The industries pushing it (music, especially) have an "unslakable lust for more and more rights, longer terms of protection, draconian criminal provisions, and civil damages that bear no resemblance to the damages suffered," he said.
Public Knowledge head Gigi Sohn testified before Congress last year that statutory damages are already "disproportionate penalties for infringement," pointing that it hardly seems fair to bill someone like Jammie Thomas more than $9,000 per song when each track costs a buck. Even accounting for a punitive penalty, that seems absurdly high.
Both Patry and Sohn attended a Copyright Office roundtable on statutory damages a few days ago, and Public Knowledge's staff attorney Sherwin Siy has posted a fascinating writeup of the closed-door session.
The meeting was a small affair, with only 30 or so stakeholders in attendance, and it quickly became clear that even content owners had different takes on the situation. The Magazine Publishers Association, for instance, argued for maintaining the current law. If the PRO-IP Act passes, anyone found guilty of copying a magazine could be liable for hundreds of separate acts of infringement (at the judge's discretion), but magazine accused of copyright violations would face similarly huge penalties.
Patry wasn't pleased with the PRO-IP Act, nor was Public Knowledge. On the other side, the argument seemed to be that people could take advantage of the law to copy "greatest hits" albums or other compilations but be liable for less damages than if they had ripped the songs from ten individual albums. As Siy points out, no one in the room could offer any actual evidence of such "crafty defendants," and the change in law would likely do little to change the behavior of file-swappers.
Given the huge amounts already available to copyright holders (who can always collect actual damages if the statutory damages truly aren't large enough to cover their costs), an increase in statutory damages seems only useful when pursuing true "pirates" and large-scale infringers. Unfortunately, the PRO-IP Act would would make the damages an option in small-scale file-swapping cases, the kinds of cases that the European Court of Justice doesn't seem real worried about. When it comes to casual, non-commercial users, current awards are high enough already.