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Fair Use is the most important right that is consistently being threatened by holders of copyright associations. They are attacking this right under the guise of preventing illegal copying with the currently available tools on the Internet. These are two separate issues and should not be treated in the same way. The right of Fair Use is sufficiently under attack that some people have raised the notion of creative works being distributed under license rather than being a legitimate purchased copy. What a legal copy does is to grant me as a purchaser of that copy (e.g. a CD of music) to play it and to copy it for my use into different formats (e.g. magnetic tape copies of vinyl records in the old days) as long as it is not for performance. The current effort by copyright associations is designed to allow these groups the right to charge for each disemination of content on any new media that comes along. Thus, they can charge multiple times for the same content. This goes against the principles of fair use and fosters the notion of temporary ownership under a licence.

Illegal copying is illegal, regardless of the live free or die movement, regardless of the age of the particular offender. However, the state is being asked to police this civil law on behalf of copyright groups for free. If the state charges for the enforcement, then the cost benefit of attacking small offenders goes up enough to make copyright associations desist and return to the mass producers of illegal copies. These people are intentionally gaining benefit from copying; rather than the "innocent" children who are simply "evaluating" the content.

The state does need to intervene, even in this civil arena, to make the penalties match the infraction. There is very little deterrent value in fining on the large scale of magnitude that seems to be prevalent in the "theatre trials" south of the border. Again, if the cost of the infraction is regulated, then the cost benefit of attacking small offenders does not have enough benefit. And the associations return to attacking real pirates who are intentionally breaking the law.

The notion of Mens Rea is being applied here in small cases. This is a criminal concept being applied to a civil environment. In that environment, there is only proof of harm and measurement of harm. I have suggested that the state intervene in the measurement of harm. The proof of harm is left up to the associations of copyright.

Robert Nobel