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.