PRO-IP Act Serves Only RIAA and Similar Lobbyists...And Not Very Well

What is a single sentence worth? In copyright law, it would appear the answer is: $150,000 per song.

Much commentary has been offered over the last two months since a bill known as the PRO-IP Act was introduced in the House of Represenatives on December 5, 2007. The bill (H.R. 4279), properly known as the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" covers much ground and states its purpose as "to enhance remedies for violations of intellectual property laws." However, the bulk of the focus in the blogosphere and elsewhere online has centered around a single sentence in Section 104 of the bill - a sentence so obviously bought outright by the influence of the RIAA, the MPAA and their ilk.

Section 104 of the PRO-IP Act proposes to replace the second sentence of 17 USC 504(c)(1). Section 504 of the Copyright Act provides for copyright damages - those damages referred to as "statutory damages." In the simplest terms, Section 104 proposes to amend 504(c)(1) so that damages for infringement by illegal copying of an album will be calculated based upon individual songs - not complete albums - thereby multiplying potential damage awards in file sharing cases by 10 or 12 times the current amount in most cases.

As 504(c)(1) stands, "all the parts of a compilation or derivative work constitute one work." This means that if a person illegally downloads a 12-song album, their potential total statutory liability lies between $750 and $150,000. If the PRO-IP Act becomes law, a copyright owner will be "entitled to recover statutory damages for each copyrighted work sued upon that is found to be infringed." This means that illegally downloading the same 12-song album will expose the guilty party to a damage award of up to $1.8 million.

That Congress would so readily hand to the recording industry and other copyright owners a larger sledgehammer with which to bludgeon their fleeing customers is a fine example of influence without intellect. As a copyright attorney I am a strong supporter of the rights of copyright owners. Plainly put, intellectual property is valuable and theft of that property is no different than theft of material goods. However, the proposed damages provision in the PRO-IP bill does nothing to discourage theft by consumers or to encourage the RIAA and its member organizations to update their own failing and outmoded models.

A college student sued by the RIAA is as unlikely to pay a judgment of $1.8 million as he is to pay a judgment of $150,000. Moreover, there is no evidence that the campaign of file sharing lawsuits has done anything to stem the tide of infringement. Simply raising the potential damages by tenfold is a blind shot that clearly has less to do with solving the problem than it does with pleasing these Congressional policymakers' financial backers.

The answer to reducing infringement by mass file sharing lies in education of consumers - primarily at a young age - and the changing of the outmoded business models of the major record labels and other content owners. The PRO-IP bill neither achieves nor encourages either of these. It is simply a legislative bandage bought by the content owners and sold by Congress, when what is truly necessary is reconstructive surgery of the related business and consumer practices. In the meantime, however, the PRO-IP Act's amendment to the damages provision of the Copyright Act should provide the RIAA and others with more cash from larger damage awards and "settlements" for the same infringements that will not stop.