A few weeks ago, I posted what I thought should be done about copyright penalties.  I left out one important point, however.  I think that copyright terms have grown out of control and need to be brought back in line with what was originally envisioned by the Founding Fathers.  Specifically, copyright should last for 14 years with one optional 14 year extension.  (You would need to apply for the extension.)  After that, the copyright would fall into the Public Domain and could be used by anyone.

That’s the way things were when the United States was founded.  Over the years, the optional extension became an automatic one, and was eventually rolled into the term itself.  In addition, the length of time that a copyright lasted got longer and longer.  Right now, a copyrighted work (for example, this blog post) made by a single author lasts for 70 years after the author’s death.  I happen to be in my 30’s.  Let’s say I live another 50 years.  This means that this blog post will enter the public domain in April 2128.  Of course, I won’t be around to see the blog post enter the public domain, but what about my children.  My youngest child is almost 1.  Let’s suppose that he lives to be 90 and has his last child at 30.  (Just for nice, round numbers.)  This means that my grandchild will be 91 when my work enters the public domain.  Presumably at that point I would have great-grandchildren and great-great-grandchildren milling about.

If this blog post was made for a company, then the copyright would last for 95 years from first publication or 120 years from creation, whichever is less.  (In this case, 95 years.)  This gives us a slightly better figure of the copyright expiring in the year 2103, when my hypothetical grandchild would be 66.

Even assuming that this blog post winds up being a huge money maker for my descendants/company (huge assumption there), copyright was never supposed to be about ensuring income to the descendants of authors and artists.  It was never meant to be a perpetual money maker for companies.  Copyright was designed as a compromise between the publics’ need to use the work to create more works and the author’s need for monetary compensation.  It creates a temporary, artificial monopoly on the work.

The author gets ownership of the work for a short time to generate revenue.  This gives them the incentive to make the original work and to make more works.  They know that the work won’t immediately get sold by someone else with the author left in the cold.  The public, meanwhile, gets assurance that the copyright term will end and they will be able to enjoy the work (and base more items off the work) without needing the original author’s permission.

With a perpetual copyright, you start running into problems tracking down the owner.  Say you wanted to make a film about Romeo and Juliet.  Who would own the copyrights to Shakespeare’s works?  You could spend decades researching that question without any success.  All copyrights *must* end or new works would be crippled.

So my proposal (let’s call it Jason’s Copyright Sanity Act) would be to limit copyright to the original 14 year term plus an additional, optional, one-time 14 year extension.  I might compromise to 20+20, but that’s about it.  I would also compromise by allowing an assumption that any works created up to 28 years before the JCSA was passed could be assumed to have applied for the extension.  As one final compromise to companies/individuals holding copyrighted works, I would phase copyrighted items out to the Public Domain a decade at a time, starting with the oldest items.  The first year after the JCSA was approved would see items from 1922 - 1929 fall into the Public Domain.  The year after that items from 1930 - 1939.  And so on until we were caught up.  It should only take 5 or 6 years to get fully caught up.  Of course, this whole proposal would have very little chance of passing through Congress as the content lobbyists would kill it on sight.

Unless you’ve been living under a rock for the last decade, you’ve probably heard about the recording industry’s lawsuits against file sharers.  Now, I have no sympathy for people who willfully infringe copyright and yes, in my mind that includes downloading a song.  (At least in the US, it does.  Canada’s a different story.)  However, any sympathy I might have possibly had for the recording industry has long since been countered by their sleazy tactics — both to individuals accused of file sharing and to the artists that the recording industry claims to  be fighting to protect.

Yesterday, CNet posted a story about how the recording industry was told by a judge that “making available” isn’t grounds for copyright infringement.  This is a good thing since many P2P applications can share out portions of your hard drive with little to no notice.  Sure, technically minded folks would easily see what’s happening and change the settings, but Joe User isn’t going to know to do this and could wind up on the receiving end of a lawsuit without having any intention to illegally distribute copyrighted material.

CNet is celebrating this ruling as one more victory against the recording industry’s shotgun approach to lawsuits.  (Sue everyone, press for quick settlements, and seek to bankrupt the people who try to fight the lawsuits instead of settling.)  While I agree, I think that a bigger win would be getting Congress to update the fines involved for violating copyright.

The fines involved were set up by Congress back at a time when the major copyright infringement worry was commercial operations.  The kind that would, today, burn a hundred copies of a DVD and sell them on eBay for $1 each.  The fines were set at $750 to $150,000 per infringement.  It didn’t take into account what I call “casual infringement.”  I define casual infringement as copyright infringement without seeking a profit.  So selling DVD copies illegally is commercial infringement.  Downloading/sharing the latest hit song on a P2P network is casual infringement.

Now that we’ve set up a distinction between the two, we should have differing fines.  After all, why should a home user who shared out 12 MP3s face the same fines as someone who sold burned copies of that music in an attempt to illegally profit off of someone else’s work?  Should both the profit seeker and the home user face fines of $9,000 - $1.8 million?  I would keep commercial infringement fines at the current levels.

Casual infringement, however, I would reduce to be more in line with the actual “damages.”  If a user shares a song, the damage to the recording industry isn’t $1.8 million.  At most, it is the amount of money that sales of the song would have brought in had the downloaders bought the song instead.  We can’t
know just how many people downloaded from a particular sharer’s song.  Not unless we got access to all of the ISPs log files and even then how do you take into account partial file transfers such as on Bittorrent?  So an arbitrary amount should be set.  Let’s say 10 downloads will be assumed unless you have proof of a more exact number.  This will keep the fine at the end high enough to be a real penalty without turning it into a life ruining event.  Assuming 10 people downloaded the songs, the recording industry is out 10 times the price that those 10 people would have paid for the songs.  (There’s an argument about “lost sales” here and I actually agree with it, but let’s put that aside for the moment.)  At iTunes and other online shops, you can buy music for $0.99 per song.  This gives us a fine per song of $9.90.

In the case of a home user who shared out 12 MP3s, the fine would be $118.80.  Not a trivial amount to be sure, but also not bank-breaking.  Of course, a more realistic scenario has the recording industry suing someone who shared out 1,000 MP3s.  In this case, the user would be facing a $9,900 fine.  Much less than the couple hundred thousand dollar fine current copyright law would lead to.  Yet, the user is sure to feel a financial sting (despite they aren’t bankrupted) and will reconsider doing it again.

Of course, this proposal has little to no chance of becoming law.  If anything, Congress’ ear is bent towards the industry which is asking for higher fines.  (Something which was just pulled out of the still bad for consumers Pro-IP Act.)