The Wall Street Journal's Walter Mossberg argues that consumers should not have to guess whether what they are doing violates copyright law. He proposes revising digital copyright law to "draw a line between modest sharing of a few songs or video clips and the real piracy of mass
distribution."

On the one hand, he is making the quite reasonable point that copyright law has gotten very complicated, which causes uncertainty and among other things lots of trouble for licensing of web enterprises, who must worry about overlapping rights for distribution, performance, recording, and so on, and whether their enterprise triggers all of the above.

But I am not buying the "consumer as victim" argument. Consumers are having a field day. The idea that they are tremulously poised above their keyboards, fearful of posting... well, the vast majority of them know perfectly well that they won't get caught whether their post if illegal or not. The problem is not to insulate consumers, but to redesign the enforcement system so that evenhanded, fair enforcement with appropriate penalties replaces a situation where (rarely) the occasional consumer is caught up in a token lawsuit with unduly harsh penalties.

The safe harbor envisioned by Mossberg, which would insulate making "a few" copies, does not seem to solve any existing problem at all. How many is a few? Do we continue to (in theory at least) to throw the book at an occasional unfortunate who makes five copies, while permitting four? And while allowing the majority of those facilitate the making of hundreds to free ride with impunity? Imagine if each consumer made four copies, and then each of those copies were copied four times... follow the math; one quickly ramps up to a pretty large number when all those copies of copies are distributed over the Net.

posted by Solveig Singleton @ 9:03 AM | Access: Commons, Fair Use, Orphan Works, Public Domain

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