Criminal Copyright Sanctions as a U.S. Export

The copyright industries’ mantra that “digital is different” has driven an aggressive, global expansion in criminal sanctions for copyright infringement over the last two decades. Historically speaking, criminal penalties for copyright infringement under U.S. law date from the turn of the 20th century, which means that for over a hundred years (from 1790 to 1897), copyright infringement was exclusively a civil cause of action. From 1897 to 1976, there were criminal penalties, but only misdemeanor ones. In 1976, felony penalties were introduced, but only for repeat offenders. Following enactment of the 1976 Copyright Act, the pace of amendments expanding criminal liability greatly accelerated—a trend that more or less coincided with the PC revolution. In 1982, felony penalties were extended to some first-time offenses, but not for all types of copyrighted works. In 1992, felony penalties were extended to all types of works. In 1997, as the commercial Internet was beginning its exponential growth, the No Electronic Theft (NET) Act eliminated a longstanding requirement of commercial motive for criminal liability, making some infringements criminally actionable even if they are undertaken without any expectation of financial gain. Under the NET Act, a willful infringer acting without any commercial motive faces up to three years in prison for reproducing or distributing as few as 10 unauthorized copies of a copyrighted work.

As criminal penalties have ballooned domestically, they have also been expanding internationally.  The international expansion in criminal copyright liability has occurred in part (and increasingly) through the vehicle of plurilateral and bilateral trade agreements. The United States uses its negotiating leverage in the trade policy arena to pressure trading partners, particularly less powerful ones, to incorporate strict IP norms into their domestic law.  Much of the controversy surrounding the Anti-Counterfeiting Trade Agreement (ACTA) a few years ago and, more recently, the Trans-Pacific Partnership (TPP) Agreement is related to this strategy of IP norm exportation, which has become a key feature of U.S. international trade policy. Administration officials are explicit about this strategy, as revealed, for example, in the 2013 Joint Strategic Plan for the White House Office of the Intellectual Property Enforcement Coordinator (IPEC): “The U.S. Government leverages a range of trade policy tools to promote strong intellectual property rights protection and enforcement, including…trade agreements…and high-level bilateral engagement.”

A very troubling story on the import side of this international IP policymaking dynamic is currently unfolding in Colombia.  A Colombian graduate student named Diego Gomez has found himself on the wrong side of a domestic criminal copyright law enacted to comply with the 2006 US-Colombia Free Trade Agreement. Diego’s story has been covered a bit by tech bloggers, and his legal case has been taken up by a Colombian digital rights advocacy organization. His offense? He posted a copy of a fellow scholar’s academic paper on Scribd without that scholar’s permission. The paper was taken down, but the aggrieved copyright owner pressed for criminal charges to be filed, and a willing prosecutor complied. Diego’s criminal exposure under Colombian law? Four to eight years (!) in prison. According to the Electronic Frontier Foundation’s legal analysis, there is a good chance that Diego will prevail on the merits of his case under Colombian court decisions requiring judges to consider whether an alleged criminal infringer had a commercial motive. A hearing in the case is scheduled for September.

I hope that the EFF’s analysis proves to be correct or, even more optimistically, that the case is dismissed before the hearing occurs. Whatever Diego’s fate, his case shines a bright light on the lack of proportionality in contemporary criminal copyright law – both the law we’ve made here in the United States and the law we’re making our trading partners make as the price of doing business with us on favorable terms.