Naturally I keep up on the latest grim developments in copyright law. The new Enforcement of Intellectual Property Rights Act, which unsurprisingly “is strongly backed by the music and movie industries,” would “(allow) for the Department of Justice to bring civil suits against IP infringers.”
IP infingers…hey, that’s me! According to the Wired article,
The (Justice) department does (already) prosecute criminal acts of infringement, although rarely. (link)
The most recent amendment to criminal copyright infringement was the No Electronic Theft Act of 1997 (NetAct) which made it a felony to reproduce or distribute copies of copyrighted works electronically regardless of whether the defendant had a profit motive. Thus, it changed the 100-year standard regarding profit motive but retained the element of willfulness…. the infringement must be either: (1) for purposes of commercial advantage or private financial gain or (2) involve the reproduction or distribution of one or more copies of a work or works within a 180-day period with a total retail value of $1,000….a noncommercial willful infringer is subject to up to a one-year prison term and $100,000 in fines…..(link)
Sita Sings the Blues, containing 11 unlicenesed songs (synch rights of underlying compositions only, as the Hanshaw recordings are public domain) has been playing film festivals since February. But are 35mm film prints and exhibition tapes “electronic reproduction”? Probably not, but surely the many DVD festival screeners are. I’ve home-burned and sent out dozens of those already. You have to, to be in festivals.
Copyright infringers may be sued both civilly and prosecuted criminally for the same infringing act. In cases where the alleged infringer has few assets that a copyright owner might recover in a civil suit, the owner may seek to have the government prosecute the infringer as a criminal….(link)
I have few assets: I’m broke, in debt, and homeless. If Warner-Chappell, Sony, UMPG et al go after me, it could be through the US government.
There are four essential elements required to prove felony copyright infringement: (1) that a registered copyright exists,
It does, thanks to retroactively extending copyright terms. The compositions were supposed to enter the Public Domain in the mid-1980′s.
(2) that the defendant infringed by reproduction or distribution of the copyrighted work,
The only wiggle room I have is on (2): my use of the 11 songs may be Fair Use. If they are deemed Fair Use, I am not infringing on copyright. If not, into the slammer with me.
(3) that the defendant acted willfully
Yep, I wasn’t totally ignorant of copyright troubles when I started this.
and (4) that the works infringed were at least 10 copies of one or more copyrighted works with a total value of $2,500 within a 180-day period.(link)
Let’s see, I have 5 prints, 6 exhibition tapes, and dozens of DVDs circulating among festivals and journalists: that’s well over 10 copies. Corporations can value the 11 compositions in Sita at anything they want, which is why they’re demanding $220,000; surely they’ll value them at over $2,500. And it’s been over 180 days.
The corporations do offer “Festival License” contracts. In my case (the generous “low end” of their arbitrary scale) these require I pay $500 a song for “non-profit, non-commercial purposes” limited to film festivals. So far I’ve only received one contract (5 different corporations are involved) but I actually read it for the first time yesterday. You’d think that since the contract expressly forbids me to make any profit from festivals, they wouldn’t charge $500 a pop for that privilege, but it gets worse: the contract has lots of other little details like I agree to forfeit my right to make a soundtrack. The Warner-Chappell festival contract is unsignable; I assume the others are too, since their terms are exactly the same.
Folks, I may be a felon. The Entertainment Industry need only snap its fingers, and the Feds can come get me.
I’ll leave you with a thought copied – I hope not illegally – from Martin Niemöller:
First they came for the hackers;
I did not speak out,
because I was not a hacker.
Then they sued the file-sharers;
I did not speak out,
because I did not share files.
Then they came for the film makers;
I did not speak out,
for I was not a film maker.
When they came for me,
there was no one left to speak.