now with more cowbell
modern ART
Posted: 2003-11-17 00:55
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Author: Phil Gengler
Section: Stuff

On November 13, Senator Diane Feinstein (D, CA) (in conjunction with Senators John Cornyn (R, TX), Orrin Hatch (R, UT) and Bob Graham (D, FL)) announced the Artist's Rights and Theft Prevention (ART) Act. This act would make recording a movie in a theater a felony with up to a 5-year sentence, and would make it a felony to make available any unreleased movie or other such work.

The anti-recording provision is similar to that found in ACCOPS, a House bill introduced a few months back. It's the other provision that I take serious issue to, that simply making a copy of an unreleased work available is equivalent to 10 counts of copyright infringement carrying damages of $2,500 each.

As I address in letters to Senators Corzine and Lautenberg, our country has generally operated on a principle of 'innocent until proven guilty'; that is, until you were found guilty of a crime, you were to be treated as innocent. This bill would automatically assume that anyone guilty of making a copy of an unreleased work available is also engaging in at least 10 counts of copyright infringement, which I find absurd.

Another effect of the bill is to dramatically lower the burden of proof for establishing violations. As the law stands now, a copyright holder must establish at least 10 instances of copyright infringement, or $2,500 worth of damages for such a crime to be a felony. This requires proof that not only was such material made available, it was illegally downloaded at least 10 times. If ART were to become law, a copyright holder then need only establish that the material was made available, which, as the RIAA has shown, cannot always accurately be determined.

If a file is simply made available, no harm is done to anyone. It's when the file is downloaded that you can begin to establish harm. And we already have plenty of laws that cover actual copyright infringement, and plenty of cases pending that pertain to infringement via sharing (but they all involve downloading the material in question).

In the wake of a recent study that found 77% of all movies being traded on the Internet were initially released by insiders in the movie business, is making sharing these movies a felony the right thing to do? Rather than attack the problem at its source (those leaking the films in the first place), the MPAA seems to want to attack the edges (those sharing the films), which is the wrong approach to take. If one person leaks the movie, and 10 people download and begin sharing it (and the initial person stops sharing), then that person will almost certainly not be discovered or prosecuted, and be at virtually no risk to continue such behavior, as it's people down the line who'll get prosecuted. While that may deter some people, there are those outside the US that already and will continue to share these movies, and they will likely continue to have a source.

So why criminalize a harmless act?


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