Prince isn’t the only one fussing over copyright these days: the Twin Cities Daily Planet, a nonprofit publication where I’m arts editor, just received a bill for $875 from Getty Images, claiming that we’d illegally published one of their copyrighted photos. The screenshot they provided was so fuzzy that it took some digging to find the image on our site; it turned out that the story featuring the image was republished with permission from another nonprofit publication who had been sent the photo by a public relations agency representing a charitable organization covered in the article. It turned out that the charitable organization didn’t have the necessary permission to distribute the photo, so the charitable organization paid the claim.

I don’t challenge Getty’s legal or ethical right to prevent the unauthorized use of their images, but the arbitrary way this hammer came down is evidence of why copyright law is broken. The music and film industries have been employing similar tactics: nabbing offenders who they happen to catch and demanding multi-thousand-dollar settlements. If you don’t pay? They’ll see you in court, and sic you for $1.5 million. Jammie Thomas-Rasset, the defendent in that case, argued that the penalty was unfair and arbitrary given that her file-sharing offenses had been no greater than those of millions of other Americans who didn’t get caught—but she argued to no avail, and remains on the hook for a sum she can never repay.

What’s to be done about this? I don’t pretend to have the answer. Eliminating copyright protection entirely would destroy entire industries—only the most radical free-the-content advocates would want that. But the current system—where Mickey Mouse is still untouchable 45 years after Walt Disney’s death, where licenses for even brief audio samples are unaffordable even for major stars, and where you either get away scot-free with pirating or suffer a wildly disproportionate penalty—is hurting creativity rather than, as was the intention, encouraging it.

I’d like to see leaders at the national level convene a group of experts to completely rethink copyright legislation in the U.S. I’d suggest the new legislation account for three important facts, or principles:

1. The digital revolution has completely transformed, and democratized, the media universe. Current copyright laws were written for a world where the means of reproduction were few, and so were opportunities for consequential infringement. Now, I can grab copyrighted material and immediately distribute it to millions—and my reason for doing so might be in the service of my own creative expression, not just to rip you off. The Thomas-Rasset case demonstrates the absurdity of trying to scale penalties to potential delivery scope, as though putting a song online for potentially billions to download it is the same kind of thing as printing billions of CDs. The recording industry, of course, would like to make exactly that case—and they shouldn’t be allowed to. In the wake of the digital revolution, we need to completely rethink what copyright violation means, and what penalties should be assessed.

2. Most people don’t want to steal. I’m not saying most people who violate copyright are clueless about the fact that their activity is illegal and might theoretically be depriving someone of income, I’m saying that most people who violate copyright are doing so in reaction to an enforcement system that’s so arbitrary and disproportionate as to seem illegitimate. Eventually, I think, technology will be able to track use of copyrighted material across multiple platforms and assess appropriate fees; but that’s still a ways off, and in the meantime, people should be given a way to pay for the use of copyrighted material in a fair, appropriate, proportional manner. If there’s no $5 option for use of a Getty photo on a small personal blog—if the only acceptable fee is $875—people are going to be much more likely to steal, knowing that gross amounts will be paid by the heavy hitters who can’t get away with not paying.

3. The penalty should fit the crime. Levying super-heavy penalties against those you catch in an effort to scare off those you don’t is not particularly effective, efficient, or ethical—whether the crime is murder (the death penalty), drug possession (imprisonment), or copyright violation ($1.5 million). The government can’t force content providers to charge fairly for use, but they can prevent them from levying ridiculous penalties against the few violators who get snared—and they can potentially help empower them to levy smaller penalties against more violators.

Barring a bold rethinking of copyright law at the national—and international—level, some forward-thinkers are taking matters into their own hands. Most notably, Lawrence Lessig’s Creative Commons license was developed to help creators retain ownership of their content while allowing distribution—and, in some cases, manipulation—of that content. It’s a great idea, and it’s been widely embraced—but there are some types of content (say, major motion pictures) that it will never be appropriate for, and as an opt-in system, it will never be able to replace a complete legal overhaul.

That overhaul has been too long in coming, and it should be a national priority if we want the U.S. to continue to be a world leader in creation and imagination.

– Jay Gabler

This post was originally published in the Twin Cities Daily Planet.