Conservatives have long stood for the principle that the state ought to abide by the rule of law. Application of the law ought to be uniform across all actors and it should sufficiently transparent that pleading ignorance is equivalent to pleading negligence.

This has been true throughout history, from Edmund Burke denouncing the English throne’s violations of the American colonists’ rights right on through to modern conservatives’ jeering of Nancy Pelosi;s infamous “we have to pass the bill to find out what’s in it” gaffe. As Justice Antonin Scalia observed in Crawford v. Washington:

We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. 

Judge George Jeffreys, to whom Scalia alludes, was famous as the “Bloody Judge,” known to hand out death sentences for practically any offense. So iconic is Jeffreys’ menacing image that Christopher Lee even played him in an exploitation horror film which centered on the judge as the villain.

Were he alive today, one imagines Judge Jeffreys would have felt perfectly at home with the thoroughly nontransparent and often arbitrarily applied copyright damages regime. Not only do U.S. courts frequently hand out draconian punishments to those who fall afoul of copyright law, but they do so with neither predictability nor transparency. In line with Rep. Pelosi’s thoughts on Obamacare, the theory underlying copyright damages seems to be “you have to steal the property so you can find out who owns it.”

By way of example, consider Nicki Minaj’s song “Anaconda,” which currently stands at number the on the Billboard Hot 100 chart. The tune samples heavily from Sir Mix-a-Lot’s sleeper 1992 hit “Baby Got Back,” which itself drew from the 1986 single “Technicolor” by Channel One. The most prominent borrowing in Minaj’s song can be found in the chorus, which repeats Mix-a-Lot’s line: “My anaconda don’t want none unless you got buns, hun.”

Minaj’s army of agents, lawyers and other entertainment professionals no doubt were able to track down the rights-holder for Mix-a-Lot’s music, and there’s almost no doubt that Minaj could afford the rights to the song in question. However, if Minaj had been an independent artist and mixed exactly the same song – which, I repeat, is currently number three on the Billboard Hot 100, and so clearly has been judged to have artistic value by the market – the process might have taken an entirely different turn. She might never have found who owned the rights, and could have been sued for anywhere from $0 to a life savings’ worth of money for infringing this inaccessible owner. One of the year’s most popular songs likely could only have been made by an already-wealthy celebrity.

Unlike other forms of intellectual property, like patents, copyright claims in the United States do not have to be registered. That’s been true since 1989, when the United States signed onto the 19th century Berne Convention for the Protection of Literary and Artistic Works. Even for those copyrights that are registered, unlike patents, there is no comprehensive database where ownership can be checked.

As a result, the ownership of most copyrighted works – including songs, films, or even novel – cannot be publicly verified. In the case of music, private licensing agencies do maintain databases, but there is no guarantee that these are comprehensive or up-to-date, nor any requirement that they be. If you plan to sample music either as a musician, in your place of business or even on a karaoke machine, the only way to be absolutely safe is to pay membership fees to all three performing rights organizations – ASCAP, SESAC and BMI — even if you’ll never use the music that one provides. If you make a mistake, all the liability is on you.

This wouldn’t be so bad if it was possible to know how much you’d be expected to pay for violating a copyright, however unintentionally. But as Mitch Stoltz of the Electronic Frontier Foundation points out, this is exactly what you wouldn’t know if you got sued for a copyright violation:

U.S. law lets copyright holders ask for “statutory damages” in an infringement lawsuit. If a copyright holder proves its case, and asks for statutory damages, a jury decides how much the defendant must pay—anywhere from $750 to $30,000 per copyrighted work.1 If the court finds that the infringement was “willful,” the maximum per work jumps to $150,000.

A copyright holder who asks for statutory damages doesn’t have to show any evidence of harm, or that the defendant made any profit from the infringement. A copyright holder can, if she chooses, simply ask the jury to come up with a number…

The Copyright Act doesn’t give judges and juries any guidance on how to choose a number within the $750-$150,000 range. It only says that the amount should be “as the court considers just.”

Imagine if this were applied to any other system. Say you walked into an unlocked house, thinking it was abandoned. A stranger then walks in, has you arrested by claiming it’s his house (but produces no deed to this effect), claims you broke in (but never shows any sign of a broken lock) and the court not only believes him, but sentences you to between one year in prison and life in prison, leaving it up to your accuser to make the decision for them.

Judge Jeffreys couldn’t have designed a more dysfunctional system. Conservatives understand that, if copyright is going to be respected in the same way as other forms of property, its violation must be treated with the same predictability and transparency as other violations of property.

One excellent first step in this regard would be to at least add some guidance for courts on what damages should be. At least then, if any independent artists write the next “Anaconda,” they’ll know whether the rights holder will take a pound of flesh or their whole body.