H.R. 4077

While there is good news today coming from profit-seeking entrepeneurs, the U.S. House of Representatives and its neverending sinister quest sent us some bad news to balance it out yesterday. H.R. 4077 makes camcording films a felony under federal law.

There are so many things wrong with this bill, I hardly know where to start. Only under the loosest of interpretations could this be justified by the Constitution, and in that case the limitations imposed aren't limitations at all, and so aren't even necessary. I challenge Rep. James Sensenbrenner to clear up this point for me.

The War on Piracy is as misguided as--if less deadly than--the War on Drugs. For starters, the camcording provision won't even help much because nobody wants to watch camcorded movies; the good versions aren't the ones they'll observe someone copying. Also I have difficulty imagining that a person deserves three years for camcording a movie but only a few months for physical violence or theft.

Yet another offensive part of the bill makes it easier for prosecutors to punish peer-to-peer users. From a strategic analysis, punishing p2p users is foolish because you'll never stop them. From a legal analysis, punishing people who share more than 1000 copyrighted works is silly because once people know, they'll share only 999. Moreover, "[u]nder the House bill, prosecutors must prove that Internet users 'knowingly' distributed copyrighted materials with a 'reckless disregard' that others also might copy them -- a much easier standard to prove." I'm sorry, your Honor. I didn't know. Honest.

These are logical consequences of the institution of intellectual property in the digital age. I see only one non-tyrannical way out.

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This shouldn't be a criminal

This shouldn't be a criminal matter but a tortious matter. Give companies the go-ahead to chase them in civil court, but don't clog the already clogged jails with non-violent offenders.

- Josh

Only under the loosest of

Only under the loosest of interpretations could this be justified by the Constitution, and in that case the limitations imposed arenĂ¢??t limitations at all, and so arenĂ¢??t even necessary.

Article I, Sec. 8, Clause 8 of the Constitution grants Congress the power, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" The same section, Clause 18 says that Congress can "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

It has been a long-standing point of Constitutional scholarship (dating at least as far back as Justice Marshall's opinion in McCulloch v. Maryland) that one of the necessary and proper powers that goes along with a constitutional granting of power to Congress is the right to prosecute those who would do damage to the granted power. (McCulloch v. Maryland, 17 U.S. 316 (1819), "So, also, the power of establishing post offices and post roads, involves that of punishing the offence of robbing the mail.")

It follows, then, that if Congress can grant copyrights, it should also have the power to enforce copyrights. Any other system would imply constitutional relegation of the enforcement power of copyrights to the states, which seems illogical.

It would be an understatement to say that far too much has been read into the implied powers of Congress under the Constitution. But I think that even the more strict constructionists among federal judges would agree that punishing copyright violations is well within the scope of the Necessary and Proper Clause.

With this comment, I don't mean to speak to whether the law is a good one or not, because I agree with you that it decidedly isn't.

Like many laws, this will

Like many laws, this will have unintended consequences that are the opposite of its stated goals. In this case, it will increase the spread of pirated films by eliminating camcordered lemons from the market, as this excellent piece at Bubblegeneration demonstrates.

Why are so many attached to

Why are so many attached to this magical parchment people call
the Constitution?

The following from jomama's

The following from jomama's blog:

"Men have been taught that the highest virtue is
not to achieve, but to give. Yet one cannot give
that which has not been created. Creation comes
before distribution- or there will be nothing to
distribute. The need of the creator comes before
the need of any possible beneficiary. Yet we are
taught to admire the second-hander who dispenses
gifts he has not produced above the man who made
the gifts possible. We praise an act of charity.
We shrug at an act of achievement." - Ayn Rand

Some people intuitively understand this. Some never
will.

I take issue with the phrase "need of the creator".
That implies at least support in what he's doing.

A creator needs nothing more than to be left alone
to do it.

Which is, of course, right on. So, I can only guess that jomama is playing the Devil's advocate in his/her above post. But just to play along, I will assert that a constitutional republic is (yes, I will be so bold) a necessary prerequisite to the sort of functioning society that Rand and jomama seem to favor. The rule of law (as backed up by our fanciful piece of parchment, the Constitution) is remarkably more suitable than its alternative - the rule of man - to doing precisely what jomama advocates, allowing the creator to just be left alone.

Patri, you should post that

Patri, you should post that as a link on the top page; that is an excellent point about economics, incentives, etc.

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As Brian recently posted, the US has made it a felony to record films with a camcorder. Li [...]