We have been over intellectual property topics of all shapes and sizes in the history of LGJ, and the one universal truth is that intellectual property rights exist for one reason: to balance the rights needed by IP producers to be able to profit from their work with the rights needed by IP consumers to be able to enjoy those works. The concept of intellectual property has never been about granting unlimited power to rights holders, nor unrestricted access to consumers. However, since the advent of the Internet, we have been in the middle of a digital arms race between pirates and various parts of the entertainment industry, which we have seen to have substantial resources and connections given some of the legal changes like the UK law cited above or the infamous Anti-Counterfeiting Trade Agreement. Both sides have, at times, taken unsustainable or unrealistic positions, be that utopian unrestricted access to all intellectual property or draconian restrictions to simple use, like the position that ripping a CD you purchased to your iPod is copyright infringement.
The simple reality is that current law doesn't adapt particularly well to the reality of the digital world, and neither does all forms of enforcement. Perhaps someday the laws will be revised to more adequately address the realities of 21st century technology and society, like my past suggestions that file sharing of protected material become the digital equivalent of the speeding ticket in certain contexts. But in the interim, it is likely that we will see more of this kind of escalation in enforcement, which returns me to my original question: just how far can things go in the US? While the land of the free and the home of the brave is known for many freedoms, the reality is that there are already broad rights to destroy counterfeit goods on the books, and it's entirely possible that an expansion of those kinds of rights may lead to greater enforcement terms against digital piracy in the US.
Of course, what we're discussing here is government action. We've already seen that groups like the RIAA can be successful in taking on pirates individually. However, the reality of that approach is that it is costly and time consuming, between tracking down these individuals and taking them to court if they are even in a jurisdiction where you can exert some reasonable amount of authority. When the government gets involved, however, it is just another piece of the enforcement puzzle.
The reality is that the government already does seize and destroy a lot of pirated and counterfeit goods. In fact, it seized over $260 million of those goods in 2009 alone. I'm sure many of you remember the mod chip raids not too long ago. This is all legally authorized as part of the powers of US Customs and Border Protection, and for good reason. If someone is importing a container of fake Xbox 360s, Customs needs to be able to stop those goods from entering the marketplace and harming not only the consumer, but also the reputation of Microsoft. Before the advent of the Internet, this was the best way to stop traffic in pirated goods, and while it's certainly not 100% effective, it is still an effective means at controlling the flow of illegal physical goods.
Accordingly, it only seems like a matter of time before someone in the US government decides that this needs to be extended to digital goods in full force, and the ACTA may be just what bridges that gap. While US regulations make it improbable, if not impossible, to see the kind of arbitrary rulemaking that the Pirate Finder General is purported to have, it's entirely reasonable that Customs might be granted additional authority over digital goods and the ability to, through the normal rule making process, create new fines and penalties for digital piracy. The worse news is that fines and penalties for trade violations can be substantial, often $10,000 per violation (with a violation imputed to be on good) and/or a prison sentence depending on the violation. Applying the same to digital goods, imagine $10,000 and/or 5 years per file. It's the same level of absurdity we've seen before. More importantly, it's not productive for producers or consumers.
Given the substantial portion of the US economy currently in the entertainment sector, I can't imagine that this issue will be taken lightly. But the reality is that a moderate approach is the only one that will work on the long term, and it's the only approach that stays true to the purpose of intellectual property. Piracy is always going to happen; the idea should not be to brute force it out of existence. The idea should be to minimize it through practical measures, that is, reasonable DRM solutions, minimal reasons to pirate out of frustration, reasonable means to sample intellectual property products before purchasing them, and reasonable penalties for infringers coupled with simple enforcement for rights holders. The idea of extreme punishments in terms of dollars (which would likely never be collected) or loss of the right to access the internet is simply not a productive use of time, nor is the idea that rights holder should simply give up protecting their products and expect that things will all work out in the end.
Time will tell how well or poorly these ideas play out in the UK, and time will tell what new mechanisms may appear in the US related to intellectual property. The simple fact is that the system as a whole needs to evolve to better address digital IP rather than continuing to attempt to shoehorn the digital world into laws that best contemplate the technical revolution that accompanied the printing press. However, given the general pace of change in the government, I can't say I have high hopes for laws that contemplate the reality of 2009 before the reality of the next great technological leap has already occurred.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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