Ranting to /dev/null

Pirate software, spend your life in jail

If there was anything that fit the definition of "cruel" punishment it would have to be this. The Attorney General has proposed legislation--obviously at the prompting of the media industry--that would drastically increase the penalties for copyright infringement and make "attempted infringement" a felony as well.

"Attempted infringement". Boy howdy, if there was a way of saying "We don't want any customers" it would have to be supporting legislation like this.

This completely destroys the difference between malum in se and malum prohibitum. The former denotes acts which are wrong in and of themselves: violent crimes, fraud, etc. The latter denote acts which are not wrong in and of themselves but are nonetheless illegal, mostly for public policy reasons: speeding, drug use (arguably anyways), jaywalking, gambling, etc. Gonzales is right when he says that it is a longstanding tenet of criminal law that one who attempts to commit an offense but fails to complete it is as morally culpable as one who had completed it: the intent was there, and but for external circumstances that prevented the completion, there would have been an offense.

But malum prohibitum offenses don't come with moral culpability. No one has ever been arrested for "attempted speeding" or "attempted illegal gambling". These are the kinds of things which you either do or you don't, but as they aren't recognized as being inherently wrong, attempting to do them isn't generally criminalized. Furthermore, malum prohibitum offenses are considered less serious than malum in se and carry much lighter sanctions, usually in the form of fines, though activities which pose a risk to the health or safety of others--drunk driving, drug dealing, etc.--can come with prison terms.

Copyright infringement is as pure an example of malum prohibitum as I can imagine. This is something which the legislature has seen fit to propertize and protect for public policy reasons: it says as much in Art. I, § 8, in the clause which grants Congress the power to authorize patents and copyrights: "To promote the Progress of Science and useful Arts". It poses zero risk to the health or safety of others, yet the penalty for copying a single song is 1000 times larger than actually stealing a CD from a record store. The current copyright--and patent--regime does nothing to protect the progress of the arts. If anything, it is blatantly used to suppress the it.

The dystopic visions of a future rule by draconian IP rights cartels seems closer every day.