Our Copyright System Sucks
You see, I hate our copyright system.
I used to live in Shanghai, China, and anyone who knows anything about international copyright law knows that China is the land of the knockoff. The knockoff is so prevalent there that often you don't know if what you're buying is the real thing. Granted, and in all fairness, copyright protection in China has improved a LOT over the years, but... those in the know generally know China to be a tough place to enforce your copyright.
Well, if China is the place where it's hard to enforce a copyright to protect your intellectual property, the USA has become the opposite: a place where it's so easy to enforce a copyright (and with entirely absurd and disgusting results) that I'm ashamed that we are supposedly the beacon on the hill in this field. We shouldn't be. We should be ashamed of ourselves.
You see, it is SO DAMN EXPENSIVE to defend a copyright lawsuit, that even the 'innocent' may end up getting screwed. Why? The threat of statutory damages, and the idiocy of judges.
In fact, the situation (in my opinion) is so egregious that if you get sued for copyright infringement, even if you are innocent, it may be less expensive to settle (for tens and tens of thousands of dollars) than to fight (and potentially have to pay even more). Keep in mind, you did nothing wrong. There is clearly something wrong.
Heck, in one case I know of intimately, because I was involved as an attorney, gross profits on the entertainment project were less than $2,000. I'm not talking net profit, I'm talking GROSS. And the alleged copyright infringement (in my opinion) was clearly unintentional. But the client settled for far above that amount. Far above it. Why? Fear of statutory damages if the jury determined the infringement was willful. Fear of having to pay even more of the plaintiff's legal fees (because loser must pay such fees) if the case dragged on any longer. Fear of the unknown. Just horrible. Horrible. I want to throw up just thinking of what happened.
I get it: Congress made these repercussions so onerous to prevent copyright infringement. But give me a break! If someone's alleged copyright infringement results in just $2,000 gross, and it's clearly unintentional, and there is no true damage to the copyright holder beyond a few thousand dollars, then how can the court system permit a settlement ten times what was even earned? And why must a defendant have to spend tens of thousands of dollars to defend accusations through months and months of answers and motions, and gosh, a trial?
Am I arguing that we should be lax in our copyright enforcement, to be more like China? Absolutely not. I am a published author myself of eight books and I want those copyrights enforced. I am one of the producers of "You Can't Kill Stephen King" and we have our hands full keeping the film off of the pirate sites worldwice. So I get it. I do.
But I am furious with how easy it is for copyright trolls to find individuals who innocently may have infringed someone's copyright, and then using the threat of statutory damages, and the fact that it's expensive to defend a copyright case, to extort undeserved settlements from people. EVEN IF THE DEFENDANT IS INNOCENT OF ANY WRONG DOING!
What's the solution? Congress needs to fix this.
a. The current federal copyright laws do not protect the innocent infringer, or the unintentional infringer.
b. The current federal copyright laws also do not offer an inexpensive way for individuals or small companies to defend against copyright infringement claims. Even if someone is totally innocent, it will still cost thousands and thousands of dollars to defend such claims, and that's a travesty.
c. The current federal copyright laws allow copyright trolls to roam free, extorting Americans left and right. It needs to stop, and this type of lawyering needs to stop. It's a disgrace to the profession, and it's appalling that the state rules of professional responsibility do not address this.
Bottom line, yes, true deliberate infringers who maliciously make great deals of money from someone else's work need to be punished, and the federal copyright laws adequately address this. But the small self-published author who has sold 10 copies? The upstart film production company who makes $2,000? The unknown musician who samples a little bit too much of a beat? Come on! Yes, they should get a slap on the risk and they should be required to perhaps do community service by teaching seminars to others about the 'perils' of copyright infringement. But to destroy their lives, and force people and companies into bankruptcy when they didn't even 'profit' or 'gain' from the alleged infringement? Forcing them to settle when it was never proven they did anything wrong? Shame on congress. Shame on state legislatures. Shame on state bars. Shame on the individuals who use their copyright to rape innocent people. And shame on the attorneys and judges that allow this to happen.
To all you copyright trolls out there: you are vicious, disgusting, and precisely the reason why people hate lawyers. I am ashamed that you are in this profession.
My rant is now complete.
-Dr. Monroe Mann, PhD, Esq, MBA, LLM, ME
Attorney at Law
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