On copyright, putting the cart before the horse

On copyright, putting the cart before the horse

Summary: The U.S. Justice Department is stockpiling prosecutorial ammunition to pursue copyright infringement crimes. The problem, editor Andrew Nusca writes, is that the law isn't any clearer.

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On Monday, the U.S. Justice Department requested $5 million from Congress to hire more prosecutors to pursue intellectual property crimes. The move comes, according to Reuters' Jeremy Pelofsky, in response to continued pressure from the entertainment industry.

I'm all for enforcing laws; that's the point. But I can't help but think that we're putting the cart before the horse on this subject, so soon after digital SOPA/PIPA protests forced action on Capitol Hill and while ACTA remains a hot issue.

First things first: the defense of intellectual property is central to the work that I, and others at my company, do. I'm not speaking on behalf of anything or anyone but myself here.

The DOJ request makes perfect sense on its face: the department needs another 14 new employees, nine of them attorneys, to handle the sizable (and likely sustained) uptick in intellectual property crimes. With Megaupload and other rather unprecedented border-spanning cyberaffairs clogging up the system, it's clear that the U.S. Justice Department is not properly organized to deal with these cases in an efficient manner.

So, an expansion? All for it. Except for one thing: the laws themselves are not nearly as clear as they need to be.

I am concerned that the U.S. is loading up on legal ammunition against IP infringement, specifically the digital kind, before it fully understands or acknowledges the nuances of an admittedly very complex situation.

Many regular people know, vaguely, that the issue is complicated. But the latest moves by officials in various countries to enforce the law are not at all helping clear it up:

  • SOPA and PIPA came under fire for giving IP holders too broad of power, via court orders, to shut down the connective tissue of the Internet while the case is under investigation.
  • ACTA is similarly criticized for creating a supernational body that, in the absence of a true universal international legislative body, can better coordinate prosecution of such crimes.

The intentions begin as well-meaning: governments seek to agree upon a standard course of action for prosecuting this crime, which is undoubtedly international in nature and requires considerable coordination to impact in any significant measure. We all need to be on the same page, and nearly everyone agrees that lawlessness on this topic will negatively affect the world's innovators.

But what I'm not seeing, at least from where I'm perched, is any progress on defining just what copyright infringement is (and isn't). The amount of gray area between so-obvious-everyone-agrees and no-way-any-rational-person-would-think-so is tremendous. Unless we better define what is and isn't running afoul of the law, we only add more fuel to the fire, by making it easier to prosecute...well, whatever is interpreted as worth prosecuting.

As technology continues to reduce the physical barriers to the reproduction of content, from digital music to 3D printing, the issue will become even more contested. Most people agree that digital repositories for copied copyrighted content should be illegal, even if those people use them all the same. It's the grayer areas in the middle that require the most attention and care, including the murky depths of "fair use."

Five million dollars to prosecute IP crimes? Sure. But we need another five million more to clean up the overly complex, contradictory and outdated language that's on the books today with something that the majority of reasonable people can rely on.

We need a strategy before we act. Or as my father always said: "Measure twice, cut once."

Photo: Horia Varlan, via Flickr. Used under a Creative Commons Attribution 2.0 license, with faith that I followed applicable law.

Topics: Enterprise Software, Legal

Andrew Nusca

About Andrew Nusca

Andrew Nusca is a former writer-editor for ZDNet and contributor to CNET. During his tenure, he was the editor of SmartPlanet, ZDNet's sister site about innovation.

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12 comments
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  • What the government should be doing ...

    ... is sponsoring joint conferences between Big Content and tech companies, for ideas on how to reduce piracy using technology, new business models, and maybe public policy. My guess however is that this will not happen, or no action will come from these conferences, if they take place.

    Big Content is run by technophobes and individuals who have a complete lack of imagination on how deal the problem of piracy in innovative ways. The tech sector and individual consumers' best hope might be the emergence of tech companies who produce content (e.g. maybe Amazon) who eventually eclipse the influence of these old timers, and approach dealing with piracy in refreshing new ways. Maybe tech companies will see it in their interest to invest in old Big Content, and re-direct their energies in ways that are not hostile to the development of technology. Whatever the outcome, I believe tech companies should see it in their interest to pull old Big Content in directions that are not hostile to tech - to help ensure tech's future growth.
    P. Douglas
    • We have been seeing a degree of this.

      @P. Douglas The common denominator between "Big Content" and "Big Tech," as you've described it (what's ZDNet, by the way, both?), is the consumer.

      As we are all too familiar with after the frequent DRM oversteps in the last decade, the key is placing restrictions on the consumer without them feeling them. It's a delicate matter, achieved with nuance. Legislation pertaining to the issue should be equally as careful.

      But each side is too often focused on fighting for as many demands as they can stand, instead of finding a mutually beneficial arrangement. As with any resolution, each side needs to give up a little ground to find the middle.
      andrew.nusca
  • RE: On copyright, putting the cart before the horse

    Tech companies MAKE MONEY off piracy... Blank Media, Networking hardware, Broadband fees, Portable Hard drive sales (are massive)..Media boxes..search engines, locker sites monetized by advertizing. That's where all the calls for 'internet freedom' come from...freedom to cash in.
    The 'grey areas' are deliberate attempts by infringers to save thier own asses. For example rather than host and index pirated material (obvious law breaking)..distribute the task - Have a 'locker site' (like megaupload) in loose partnership with a search-engine( like filestube.com ). Still providing piracy, but everyone can now blame each other for the piracy due to their deliberate exploitation of 'grey areas'.
    JeffMcClintock
    • This is quite a leap of faith.

      @JeffMcClintock I'd be hard pressed to directly connect the dots between the industry of piracy and the industry of storage. I don't know about you, but most of my external hard drives are filled with cherished family pictures and vital information backups.

      Ditto the aforementioned "gray areas" -- no doubt there are malicious operators in here, but there are plenty of regular people, too. It's hard to follow the law when you don't know what it is.
      andrew.nusca
      • RE: On copyright, putting the cart before the horse

        @andrew.nusca "I'd be hard pressed to directly connect the dots between the industry of piracy and the industry of storage."<br>Well, My neighbor has a server with 4TB of hard drive..FULL of pirated movies. My Niece arrived with a 100Gb portable hard drive .."we have a server in the dorm full of pirated movies, we each copy our faves onto our own drives to take on vacation". My friends R & P both have *hundreds* of movies copied onto blank DVDs. One rents from the store and copies, the other downloads via bit-torrent. My other friend R records TV series onto blank media and makes copies for friends. All this represents big profits for storage hardware vendors off the back of other's hard work.
        JeffMcClintock
  • RE: On copyright, putting the cart before the horse

    The protests against SOPA and ACTA have shown that the public is *finally* starting to wake up to the threats posed by the media cartels and the bribes they have handed out in Congress. But the people will just go back to sleep. Unless the Feds start perpetrating outrages against grannies and kids, which is not too farfetched considering their track record.

    So I say, give them more money to prosecute, and let them start throwing normal people in jail and seizing homes to pay the Hollywood rackets. Maybe that will get the public's attention long enough to finally get some decent laws on the books that restores the balance destroyed by the copyright extension acts and the DMCA.
    terry flores
    • This seems like...

      @terry flores ...a rather imbalanced way of achieving balance. I'm pretty sure we can agree on a reasonable law without going through all the trouble of enforcing one we suspect is unreasonable.
      andrew.nusca
  • As long as copyright is "life of the author plus seventy years"...

    I will have NO respect for copyright. The stealing of our cultural heritage for the enrichment of the media conglomerates is the true crime.

    Reduce copyright to 14 years from date of creation. Then we can talk about copyright enforcement.
    sismoc
    • 100% Correct

      @sismoc <br><br>Copyright was always meant to be TEMPORARY, yet it is by default PERMANENT. As such, it is currently a joke.
      Takalok
  • RE: On copyright, putting the cart before the horse

    Because we've got Senators like Orrin Hatch, who want the Government to start blowing up computers by the hundreds of thousands, http://www.dethronehatch.com/orrin-hatch-is-no-friend-of-the-internet/
    I'm convinced the Government is going to become continually more invasive in our lives, rather than realizing the futility of combating technological growth and the blessings it brings in escaping scarcity
    fightingleg
  • One industry

    Entertainment industry is important industry but it is just of one of many industries. Technology companies provide technology to every industry globally. However Entertainment industry wants laws which make technology companies to alter their technology; which in effect cause issues for other industries. Any technology change then affects systems across the world (not just in the jurisdiction of the law).

    Why should everyone dance on the tune of entertainment industry?
    Why every industry keeps their silence?
    Why politicians dance on tune of entertainment industry? why they are allowed to take indirect bribe?
    Why should I accept substandard/restricted technology or service?
    p.vinnie@...
  • @Andrew

    Right now, publishers have major issues in getting international distribution rights for content, especially with TV programming. Either it's too expensive, or they have to sell off exclusive distribution rights to a regional carrier due to local laws. Quite a bit of piracy is excused because of this reason (I'm not saying it's a good excuse). Do you think ACTA will put more power into content creators hands in offering them better options for international distribution of their content? I mean, if we have an international governing body that handles copyright control, would that mean that content creators would get more freedom in distributing across international borders? All too often local laws prevent content creators from self-publishing outside of their own market.
    Joe_Raby