Monday, March 23, 2009

Obama is wrong

I have been thrilled with many of the early actions of the Obama administration. In the cases where we disagree, or I am uncertain their consistent populist tilt have kept me contented. In general I've been pleased with what amounts to our new administrations Q1. Today I read something that just bothered me.

The Obama administration has sided with the RIAA in favor of excessive P2P fines. these are fines ranging from $750 to $150,000 per instance. This is insane. There is no math to validate this. These "infringements" are normally sold for about 89 cents each or 0.000593% of the fine. More here.

In other words the fine is up to over 150,000x the price. The notion is that these are statutory damages. The rationale is weak. No one is arguing that copyright law is bad. Clearly both artistic and scientific works need protected to encourage business and innovation. (Protecting them indefinitely is ridiculous but that's a side issue) The problem is section 2 of H.R.3456 also known as the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Overstepping the 200 previous years of rational statutory copyright penalties they just took the percentage structures we used for 2 centuries and increased it by 50%. I'll quote the wording here:
Section 504(c) of title 17, United States Code, is amended--
(1) in paragraph (1)--
(A) by striking `$500' and inserting `$750'; and
(B) by striking `$20,000' and inserting `$30,000'; and
(2) in paragraph (2), by striking `$100,000' and inserting `$150,000'.
The text is readable... it means leave wording as-is, take out old price insert new price. I find that the first time I strongly disagree with the Obama administration is the first time they firmly agree with the Bush administration. it's no coincidence that two lawyers in the new DOJ are former RIAA lawyers: Donald Verrilli Jr. is the one-man wrecking crew that destroyed Grokster, and Tom Perrilli the satanist that thought ISPs should release customer information to the RIAA even without a court subpoena. No subpoena. You know... the distant legal cousin to warrantless wiretapping. Anyway back to the legalese:

The section 504 the edit reads as follows:

§ 504. Remedies for infringement: Damages and profits:
In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).

This is simple. If you "share" an MP3 what damage did a record label incur? they had no physical loss. There were no physical copies of the CD stolen. Copies were made and distributed, so the only argument for actual damages is loss of sales. This has been laughed at internationally because we all know intuitively that each illegal download does NOT supplant a sale. Nonetheless distributing a work you do not own is also intuitively wrong even if the actual damages are difficult to compute.

That difficulty has moved the emphasis to statutory damages. The RIAA has lost millions on these trials so far. They lose in court frequently. But they can penalize the P2P users to intimidate other users. it's ugly, but under the present letter of the law they have some standing.

My objection is that in court these onerous fines can levy greater penalties than those on a drug dealer, a wife-beater or a burglar. They woudl levy up a fine of $450,000 on an 11-year old kid who downloads three Kelly Clarkson songs. This is an imbalance of power in the favor of very powerful corporations in to the detriment of everyone else in the entire world. You could be fined half a million dollars for 3 songs. That is more money than many Americans make in their entire lives. That is incongruous, and in my estimation that makes it unconstitutional. In my estimation this countermands our very plainly worded constitution. The eighth amendment of the US constitution explicitly prohibits excessive fines:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."