While most of our work at QuestionCopyright.org addresses artists and audiences, we're also always on the lookout for good pieces intended for the legal and policy research communities. When lawyer Dirk Lasater asked if we'd be interested in publishing these excerpts from his article “Closing Pandora’s Box: Speculative Invoicing and Opportunism in File Sharing”, we jumped at the chance.

What Lasater describes below is moral hazard: the inevitable abuse of a system that is optimized for large-scale, monopolistic, predatory behavior. Of course, he is more circumspect in his language, as befits someone writing for a legal journal — but read the excerpts yourself and see if you can come to any other conclusion.

In his full journal article there is also a Proposed Remedies section, with some suggestions that ought to be uncontroversial: an amendment to the DMCA requiring a "statement that the complaining party has examined the purported infringement and believes in good faith that there is no potential fair use or exempt use, as defined by this Act, of the alleged infringer", and, even more importantly, this amendment:

Unless otherwise provided, any person who threatens a lawsuit by mail, electronically, or in person; or any person who issues requests for pretrial settlement of infringement claims after obtaining a subpoena under this section and who knows, or should have known, that the alleged settlement was based on false statements or misrepresentations, including material omissions, shall be liable for any damages, including costs and attorneys’ fees incurred by the alleged infringer, and any damages including costs and attorneys’ fees of any service provider who is injured by such conduct as the result of the service provider relying upon such subpoena in removing or disabling access to the material or activity claimed to be infringing, or in disclosing the identity and private information of the alleged infringer. Treble damages shall be available in cases of willful or wanton disregard by the party obtaining the subpoena.

The idea that those who commit copyfraud should have to pay for the inconvenience they cause others is not new. What is new is the careful drafting Lasater brings to the proposed solution. He's not just saying it would be a good idea to amend the law so there are penalties for copyfraud — many people say that. But Lasater actually drafts the amendment, and backs it up with the kind of legal analysis and history that one wishes went into all legislation.

Biography: Dirk Lasater is a practicing lawyer in Winston-Salem, NC with an interest in intellectual property issues. He is currently working in a temporary capacity as he looks for a permanent legal position in some area of commercial transactional or intellectual property law. Dirk received his bachelor’s degree in the Classics from the University of Florida and earned his Juris Doctor from the Wake Forest University School of Law in 2011. From 2010-2011, Dirk served as the Editor-in-Chief of the Wake Forest Journal of Business and Intellectual Property Law. He has published various blogs on copyright law and has also authored two academic articles, one of which focuses on the competing concurrent use of virtual trademarks on the internet, and the other on the practice of speculative invoicing, portions of which are reprinted on Questioncopyright.org. While in law school, Dirk interned at Novant Health, Inc., a regional health care system, and also volunteered for two years as the Assistant Director of the Wake Forest Innocence Project where he worked on actual innocence claims and reintegration of recently released prisoners.

These excerpts are part of a larger article, “Closing Pandora’s Box: Speculative Invoicing and Opportunism in File Sharing” from the Fall Issue, Volume 12-1, of the Wake Forest Journal of Business & Intellectual Property Law. The author and Question Copyright thank the Wake Forest Journal of Business and Intellectual Property Law for allowing these portions to be published here under a Creative Commons Attribution license.

Author's Introduction

The Pandora’s box of file sharing as it currently exists has found renewed presence in public consciousness over the course of the last five to ten years. While dormant through much of the late 2000s, the government and content owners have begun a full court press aimed at preventing the free sharing of movies and music on the internet. The most recent action against Rapidshare and the grass roots rejection of SOPA and PIPA have brought internet related issues back into vogue, and have directed attention to the speculative invoicing approach to copyright enforcement used quietly and persistently over the last five to ten years. Following Napster’s demise, internet technology has continued to advance, with file sharing use skyrocketing and enforcement regimes struggling to keep pace.ⁱ Historically, as content owners and the RIAA searched for ways to close Pandora’s box, they targeted file sharing websites such as Napster, Grokster, and Limewire, and, in tandem, sued individual end users.ⁱⁱ While the content industry has had some success on both of these fronts,ⁱⁱⁱ resolution of the larger problem has not been realized, Pandora’s ‘evils’ are out of the box, and all efforts are beginning to look like a seemingly futile attempt to prevent online file sharing.^iv

What is free culture?

Free culture is a growing understanding among artists and audiences that people shouldn't have to ask permission to copy, share, and use each other's work; it is also a set of practices that make this philosophy work in the real world.

The opposite of "free culture" is "permission culture", which you probably don't need to have explained in detail because you're familiar with it already.  In the permission culture, if I write a book and you want to translate it, you have to get my permission first (or, more likely, the permission of my publisher).  Similarly, if I wrote a song and you want to use it in your movie, you have to go through a series of steps to get clear permission to do so.  Our laws are written such that permission culture is currently the default.

In free culture, you just translate the book, use the song, etc.  If I don't like the translation or the film, I'm free to say so, of course, but I wouldn't have any power to suppress or alter your works.  Of course, free culture goes both ways: I'm also free to put out a modified copy of your movie using a different song, recommend someone else's translation that I think is better, etc.  These are idealized examples, for the sake of illustration, but they give the general idea: freedom takes precedence over commercial monopolies.