Artists’ Rights and Theft Prevention Act–New Criminal Copyright Infringement Standards

As part of the Family Entertainment and Copyright Act, Congress enacted the “Artists’ Rights and Theft Prevention Act of 2005” or the “ART Act.” The ART Act adds two new major criminal standards: (1) using a camcorder to record a film in a movie theater, and (2) the willful distribution of pre-release software, movies and music by making it available on a computer network accessible to the public. There are some other goodies for copyright owners, including instructions to the Copyright Office to create a registration process for pre-release works and instructions to the Sentencing Commission (to the extent that body still matters) to ratchet up sentences for criminal copyright infringement yet again.

The ART Act is the first major change to criminal copyright law since the No Electronic Theft Act (the “NET Act”) in 1997. In 2003, I wrote a paper examining the effects of the No Electronic Theft Act, where I concluded that the law was both ill-conceived and a failure in practice. In the paper, I further explored why criminal sanctions for non-commercial copyright infringement were excessive and unproductive.

Although not specifically stated, both the NET Act and the ART Act target a group of pernicious infringers called warez traders. Warez traders engage in the trading/distribution of copyrighted works as a hobby/avocation. I specifically described their motives and personality profiles in a paper released earlier this year.

Since the NET Act, the DOJ has had significant success prosecuting warez traders. (I described this success in my 2004 article on warez trading.) I stopped counting when the DOJ hit about 100 prosecutions and 20 jail sentences in 2004, and there have been more since then. In other words, prior to this amendment, the DOJ has successfully used the NET Act to go after individuals who trade copyrighted works, including pre-release copyrighted works, without a commercial motive.

Because of the DOJ’s track record, I’m not as outraged by the ART Act as I expected to be. Indeed, the marginal addition to the NET Act is so small, I really don’t expect it to amount to much at all. The only thing the ART Act does is negate the need for the DOJ to prove a quantum of loss to the copyright owner in the case of pre-release works. In theory, this is a problem because, by definition, pre-release works do not yet have a market value. The ART Act overcomes that “problem” because merely placing the pre-release works on the Internet (or into the share directory of a P2P file-sharing software program) will meet the standard without the need to prove any loss at all.

While Declan thinks this is a problem, I’m less moved. I don’t think the DOJ has been significantly impeded in prosecuting warez traders to date. While the ART Act makes the DOJ’s life easier, I don’t expect any different substantive outcome in any cases they choose to pursue.

This is not to say that the law criminalizes behavior optimally; far from it. There is no question that criminal copyright law covers ordinary Americans. I’m pretty confident that everyone reading this blog is eligible to be prosecuted as a criminal copyright infringer if the DOJ wants to do so. The ART Act gives the DOJ an easier way to go after a few of us, but this isn’t a failing of the ART Act. Instead, it’s an indictment of our entire scheme of criminal copyright infringement (and, some would argue, our criminal legal system generally), which overcriminalizes behavior with the understanding that the DOJ will exercise its discretion appropriately. I have argued that we should fix that defective architecture, but I see no movement in that direction. Instead, elsewhere I’ve explained (in the conclusion) why Congress remains obsessed about warez traders and doesn’t care about the collateral consequence of criminalizing everyday behavior among most Americans. Meanwhile, I have also argued that increased criminal sanctions for copyright infringement has a counterproductive effect on the intended audience of warez traders, so Congress is only further moving in the wrong direction policy-wise if its goal is really to curb illicit trading of pre-release works.

UPDATES:

Pres. Bush signed this into law April 27.

Declan’s write-up of the signing. Note that I never said that I expect the DOJ to act “responsibly.” My point was that I think the DOJ already had the power to prosecute infringers who distributed pre-release content, so I don’t see the DOJ doing anything differently than in the past.

I disagree with Susan Crawford about this law expanding the distribution right. I think the distribution right already included situations where a party merely makes copyrighted works available. See Hotaling v. Church of Jesus Christ of Latter-Day Saints (4th Cir. 1997).

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