Know Your Rights: Why is copyright law so screwed up?

Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.

What on earth is going on with that $222,000 RIAA judgment against that poor woman in Minnesota? Is the system really that broken?

Why do you always ask questions that you know will have answers that you don't like?

Come on -- almost a quarter-million dollars for sharing 24 songs on Kazaa? No one even uses that anymore.

Well, the truth is that the system isn't broken at all, really -- it's working exactly as it was designed. Under the rules in place now, anyone who willfully infringes a copyright is on the hook for at least $750 and a max of $150,000 per infringement. Since each song you share is a unique copyrighted work, that means you get hit with that penalty for every track in your shared folder. This obviously lead to some strange hypothetical results -- sharing that copy of "Wave of Mutilation" triggers the exact same legal mechanisms as sharing all of, say, OS X or Vista, since those are considered single copyrighted works, but that's how we determine damages in our system.

Well, so why were the damages so ridiculous in this case?

A range from $750 to $150,000 is pretty huge, and we may never know exactly why the jury in the Jammie Thomas case settled on $9,250 per infringement as their number -- and most observers seem to agree that it's a figure that is out of proportion with whatever harm she may have caused the labels. There is also no conclusive evidence that damages of this size have done anything to halt the growth of P2P file-sharing.

The real problem that's being brought to light is that our system doesn't always keep pace with the rapid changes in technology. Every system has flaws, and it's incredibly unlikely that lawmakers, of all people, will be able to draft legislation forward-looking enough to avoid similar breakdowns in the future.

So why even bother? If we can't get it right, why even try to impose all these limitations? It just seems to lead to things like DRM.

What you're asking is more of a philosophical question than a legal one -- what law students will recognize as a "policy question." The copyright system is designed to reward creation and penalize unauthorized copying -- which is exactly why those fines for willful infringement are so high. If you were an author and someone straight-up copied your work and re-distributed it, wouldn't you go after them for as much as you could? Just look at the way we react to less-obvious copying situations, like those Apple ads that seem to lift a little more than they should.

Now, if you copy something in a non-willful way, the copyright owner has to show how much they were damaged and how, so we don't drop the hammer as hard on that kind of copying -- and the judge can reduce those statutory damages pretty drastically if you prove that you didn't know you were infringing. But the main idea -- straight from the Constitution -- is that the copyright system should promote the "useful arts" by giving authors the exclusive rights to profit from their works.

Whatever, I'm an coder and I license everything I write with an open-source license, so how on earth does this broke-ass system help me?

Because open-source licenses like the GPL and Creative Commons wouldn't be able to exist without strong copyright law to back them up.

How does that work? I thought they were all viral and subversive and damn the man! Talk hard!

Calm down, Harry. While open-source licenses are incredibly innovative ways of turning copyright law inside-out, they still depend on the existence of copyright to make all those sexy viral provisions stick. That's all a license is, after all -- a set of conditions under which an author lets you use his / her work. If you don't own anything, how can you enforce your rules? The reason why open-source licenses have power is because anyone who breaks them is liable for -- you guessed it -- regular, old-fashioned copyright infringement, and all the penalties that come with it.

So you're basically saying that there are parts of the system that are a little out-of-date when applied to the modern tech landscape, but that overall things aren't as bad as they seem?


This was so much easier when I just got to flame away about how broken everything was.

Don't worry, you can still do that. We won't tell anyone.


No problem, Mr. Emo Pants. Just try not to get your guyliner all over everything like last time.