Infringement Nation: we are all mega-crooks

John Tehranian's paper, "Infringement Nation: Copyright Reform and the Law/Norm Gap," from a forthcoming symposium issue of the Utah Law Review on "Fixing Copyright," is a great, tight little essay on the way that the growing gap between what technology allows us to do and what copyright tells us not to do is turning us all into mega-crooks. Just by doing the normal, everyday stuff -- chatting with friends, sharing the moments of our lives -- we commit billions of dollars' worth of infringements:

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges).50 There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer–a veritable grand larcenist–or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.

PDF Link (Thanks, John!)

• [tomrigid]

  “Copying the text of an email as part of a reply, for example, is almost certainly both fair use and authorized.”

  This seems like exactly the sort of baseline assumption that is true only up to the point where the technology exists to allow copyright holders to enforce their claims. It’s not the “grace of fair use” but the benign ignorance of corporate interests which allows most of the traffic John discusses to go unpunished. If they had the technology, the will, and the economic incentive to punish this behavior, wouldn’t they be able to do so? Under the present rules?

• [ripley]

  Is it true that it’s “not infringement once fair use kicks in” ?

  Fair use is a defense to infringement where you admit infringement but say it was justified, isn’t it? You affirm the boundaries of copyright but justify crossing them, rather than arguing that the boundaries should be moved. This is why it’s argued on a case-by-case basis.

  This article suggests some good reasons to move the boundaries, I think.

• [noen]

  This is all really very simple, it’s about power, it’s always about power. There are no laws, no rules, no morals, only power.

  At the upper levels we are ruled by sociopaths. The corporations themselves are sociopathic in their behavior. The is only one law for them, we have all the power, you have none. In Mexico there are fishermen who have lived for generations fishing locally. The corporations sweep in and now what happens? They work like the slaves they are and are strictly forbidden to eat the fish they now catch for the corps. So what do they get to eat? Fish entrails. And so they do, and so will you. Look at coal mining areas in the US, what do they look like? The f*cking surface of the moon. 400 years and what do the people of the region have to show for it? Nothing, absolutely nothing.

  Take a look at this video “Not The Daily Show, With Some Writer”

  What are the studios saying? They say that writers deserve nothing from internet content because it is worthless yet these very same corps turn around and sue YouTube for billions. Does that make any kind of rational or moral or legal sense at all? No, of course not. The only way to understand their position is by what I talked about above. That is: there is only one law, power. There is only one rule, power. They admit of no other constraint.

  There is shit in our food, lead in our toys, poison in the water. They will utterly destroy our world through pollution and global warming because frankly, they think they can ride it out while the rest of us die by the millions. This is your future unless we do something about the sociopaths among us.

• [Paul D]

  This is one more example of how the notion of imaginary property is absurd.

• [Anonymous]

  Nothing changes: If you want to create more criminals, just increase the number of things that are illegal!

• [License Farm]

  Relatedly, did you hear Gene Simmons’ comments about the Radiohead model and mp3 downloading in general? The gist is that he thinks the record labels ought to have sued the bejeezus out of anyone who dared do so as soon as the practice started and the problem wouldn’t exist today. He also said that illegal downloading is the reason why he hasn’t produced and has no immediate plans to produce any new KISS material. Because, as you all know, modern college kids listen to KISS.

• [James Grimmelmann]

  The article provides a nice illustration of a point Fred von Lohmann has long been mkaing — there but for the grace of fair use go we, given all the copies we make in our everyday lives. It also provides a nice illustration of a point Larry Lessig has long been making — depending on fair use (an affirmative defense that in practice gives you “the right to hire a lawyer”) given all of the copyright overreaches out there is ridiculous. But I wish the article would confront the role of fair use and implied license in its cavalcade of supposed infringements. Many of the uses it describes are simply not infringements once fair use kicks in, and many of the rest are clearly authorized by the author. Copying the text of an email as part of a reply, for example, is almost certainly both fair use and authorized.