Tuesday, September 30, 2008

A Letter to My Congressman about the PRO IP Act

UPDATE: Ray Beckerman informs me that this comes too late.

I'm trying to compose a letter about the PRO IP Act, passed by the Senate and
quickly facing almost certain unanimous approval in the House. Any suggestions here would be greatly appreciated, maybe there are places that could be trimmed, as it stands it is very long. Oh, urgency seems to be an issue.

You can write something similar to your Congressman using this form.

Dear Dennis Moore:

I am writing to thank you for your service to our District. I would also like to urge you to oppose the PRO IP Act, but it will take more time.

The President and co-founder of Public Knowledge recently wrote of the PRO IP bill that recently passed the senate, "The bill only adds more imbalance to a copyright law that favors large media companies. At a time when the entire digital world is going to less restrictive distribution models, and when the courts are aghast at the outlandish damages being inflicted on consumers in copyright cases, this bill goes entirely in the wrong direction."

Currently, if someone steals a physical CD from a store, they faces a maximum of $5000 in penalties. If someone downloads a CD from the internet, this bill leaves them responsible for $1.5 million in damages.

I know that we want to encourage robust protections for intellectual property, but it seems like there are three reasons reasonable people might be aghast at this bill.

1) The appropriate punishment.
District Judge Michael J. Davis lambasted the current state of damage awards in a recent case (Capitol vs. Thomas), which resulted in a $222,000 award. In his decision, Judge Davis implored Congress to take action to stop the "unprecedented and oppressive" nature of statutory damage awards. I do not believe the PRO IP Act is the direction Davis had in mind.

When someone steals anything, it's hard for anyone to rise to their defense. But in America, we believe not only in punishment for crimes and redistribution for wrongs, but we believe these responses should be *just*.

We do not suggest that a man who steals should have his hands cut off. This is not for some modern or American love of the thief, but out of a love for a well ordered society, a truly democratic society where someone's wrongs dictate the severity of the response.

Proponents of the bill will insist that a loss of $1.5 million is nowhere near corporal punishment. While that may be so, no one can deny it is the sort of punishment that would deeply effect one's life.

2) Representation in Government
Obama is running an inspiring campaign on the promise of hope, not hope for big business, but hope for the average citizen. McCain meanwhile is running a campaign on promises of ending favors for special interests, that government might be more responsive to its people. The appeal of both these positions has made this one of the most exciting campaigns of our time.

I'm well aware that there are many noble reasons to protect American creations here and abroad. But this bill looks in every respect like a bad bargain for the American people. It looks to the voter more like a handout to big business. We are taking a few citizens who've made some common mistakes and throwing them under the bus of profits for Disney and Sony.

The bill seems to fight against all the positions that make the two candidates for President so attractive.

3) Chilling Effects
My biggest fear is not that someone who intentionally stole music gets harshly punished. My biggest fear is for the innocents that we will inevitably sweep up in the tide. The RIAA and MPAA don't have the greatest track record on only targeting only the most certain of violators.

Ray Beckerman has kept a record of the RIAA's attempts to violate civil procedure, then hop jurisdictions when a judge objects. If you don't know about the other abuses of our courts, google for the story of disabled single mother Tanya Andersen, or for the story of grandmother Sarah Seabury Ward (who never even owned the hardware necessary to engage in the acts she was accused of).

Those stories provide a record of those who stand up to the RIAA. No one is taking a tally of the number of citizens that are accused falsely of piracy, but quickly settle because they feel they have no other option.

There's a way to stem such abuse. If the content industry wants more significant penalties than the criminal justice system, then maybe it's time for them to submit their cases to grand juries, or up their standard of proof to "beyond a reasonable doubt." Maybe we need to simultaneously raise the penalties for those who engage in a tactic of litigious intimidation.

Such moves might reassure us that the legislature is interested in justice for all, not just justice for a few rich industries.

I am thankful the content industry works hard to defend the American artist. Their heart may be in the right place. But for now, I'm going to turn off the radio and listen to a little more Woody Guthrie, who once wrote:
"'This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin' it without our permission, will be mighty good friends of ours, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do.'"

Thanks again for your service,
Thomas Brownback