Rep. Peter King, the ranking member of the House Committee on Homeland Security, and other Republican members have sent a letter  to Secretary Napolitano expressing concern about the “repeated reposting” of the unredacted TSA security manual on multiple Web sites and asking her to say whether the sites can be compelled to take it down. They’re right to worry.  I said as much in an interview recently.  Whenever someone posts a document that compromises our security, there’s much handwringing about this issue and much breast-beating about the first amendment.  It seems like an unanswerable conundrum.

But there is an answer.  In general, the sites that posted the TSA document don’t post copies of the latest Rihanna album, “Rated R.”  That’s because the damages for posting Rihanna’s (pretty good, actually) album is likely to be $150,000 for each of the thirteen cuts — the damages for willful infringement of Rihanna’s (and Def Jam Recordings’) copyright.  There are very few stable links on the Internet to Rihanna’s album, precisely because the threat of large damages deters such links.  First amendment or not, Congress and the courts have agreed that this is a perfectly fine way to deter certain kinds of speech.  Plenty of Democrats and Republicans on the Judiciary Committee have voted for just such deterrence

So here’s my question.  Who thinks that protecting Rihanna’s profits is more important than keeping TSA’s procedures out of al Qaeda’s hands?  Why do we create $1.45 million in liability for pirating “Rated R” and no liability at all for the willful posting of sensitive, properly redacted homeland security information?

And here’s a proposal for Rep. King:  why not set the penalty for willfully disseminating properly classified or sensitive documents at twice the penalty for willfully disseminating registered copyright materials?  And why not let anyone whose security has been put at risk bring that suit?  After all, when the music industry finally gives up its litigation campaign against ordinary Americans, its lawyers are going to have to pay the rent somehow.

Anyone who voted to increase damage awards for copyright infringement should have no trouble supporting the same protection for national security.  Since the $150,000 figure comes from the “Digital Theft Deterrence and Copyright Damages Improvement Act of 1999,” I’m guessing that a lot of those folks are still around.

This piece was originally posted on Skating on Stilts.

  • tjacampbell

    Hear, hear!!!!!! It's amazing and somewhat imbalanced, that commerce can impose greater restrictions on IP than Government.