The Infringement Age: How Much Do You Infringe On A Daily Basis?

from the a-lot-more-than-you-might-think dept

Boing Boing points us to a paper from John Tehranian, called Infringement Nation: Copyright Reform and the Law/Norm Gap (pdf), which attempts to show how far out of whack copyright laws are, with the simple tale of a hypothetical law professor (coincidentally named John, of course) going about a normal day, tallying up every big of copyright infringement he engages in. Replying to an email with quoted text? Infringement! Reply to 20 emails? You're looking at $3 million in statutory damages. Doodle a sketch of a building? Unauthorized derivative work. Read a poem outloud? Unauthorized performance. Forward a photograph that a friend took? Infringement! Take a short film of a birthday dinner with some friends and catch some artwork on the wall in the background? Infringement!
"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). 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."
While the paper calls this "infringement nation," it clearly goes beyond our nation. We are living in the "infringement age," where it's impossible not to infringe on copyrights every single day -- yet many people still don't understand why it makes sense to change copyright laws to make them more reasonable.


Reader Comments (rss)

(Flattened / Threaded)

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    natron, Nov 20th, 2007 @ 3:20am

    eliminate them all

    OK, unplug the copy machine, unless you copy something you generated with your own grey matter, you cant copy it. If you made it (entirely on your own) then you probably did it on a personal computer, so you dont need a copy machine.

    Turn off the voice recorders, unless you were the only one talking, you probably violate someone's copyright to record their voice.

    Stop taking pictures, unless you are the only subject in your picture, you are probably violating someone's intellectual property by just taking their picture.

    Stop telephoning anyone, anything you hear may be copyrighted material unless you were the one talking, but if you were quoting someone else, oh shit, better watch out.

    This whole thing is getting so far out of hand that there is only one thing to do, hire a f***ing lawyer to sue someone before you get sued, or hope that you win more than the guy who is suing you so you can pay him. Oh, by the way, don't spread transcripts of your court proceedings, you may be violating your opponent's right to financial gain under the intellectual property right laws.

    Can you sue your lawyer for writing down what you tell him in confidence? After all, it was your words that he wrote down, so he must be in violation somewhere. That's it, sue the G** D*** lawyers for creating this mess!

     

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    natron, Nov 20th, 2007 @ 3:31am

    Whats even worse, I guess I will have to stop forwarding all those jokes I get by email, they all obviously violate someone's "intellectual" property rights (as lame as the jokes are sometimes).

     

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    Alfred E. Neuman, Nov 20th, 2007 @ 4:30am

    Mind Eraser

    Sorry Mike ... After having read the above, I realize that I've infringed upon your web site. I will correct that in just a moment. Everyone please put on your special sunglasses. Now where did that flashy thingy go ?

     

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    chris (profile), Nov 20th, 2007 @ 4:44am

    professors don't infringe

    only teenagers do. older people grew up buying physical media, so there is little you can do to shape their opinion.

    teenagers are different. they have their whole lives ahead of them and need to be re-educated about the importance of physical media and the media companies' business models.

    music on cassette tape is not infringement. old people use cassettes. mp3s infringe because college kids use them.

    it's all so simple.

     

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      Bigpicture, Nov 20th, 2007 @ 8:54am

      Re: professors don't infringe

      It's about analogue versus digital. Digital screwed everything up in relation to the operation of copyright laws.

      It used to take over an hour to record a cassette, and sometimes I used to spent a whole Sunday afternoon recording a single cassette.

      And really in the end all I was doing was transferring to a different media, and selecting the actual songs that I wanted, and leaving off the ones that I did not want. (selecting and arranging) You see they never did successfully make LP players for vehicles.

      Now I can record a CD in less than 5 minutes, and that includes selecting the songs that I want, in the order that I want them. And unlike a cassette if I make a mistake or change my mind on the content, I just trash the CD and start over with a new CD, no big deal, but with a cassette starting over was a huge deal.

      I think that transferring from one media to another or selecting or arranging on the same media is still considered by copyright law to be "fair use". Making available or acquiring for no copyright fee by digital method is not. Digital made this possible.

      So here is the issue: In the present technological and social environment, the role of the recording companies becomes less and less relevant, (the actual value of recording and distribution of content services) the artists still need to be fairly compensated for their work, and present technological progress should not be unduly restrained. Or if so, this will be a recipe for the US to get passed by by others who impose no such restraints, and become a third world nation.

      For instance Google provides what could be considered public services, yet there is no charge to the public for those services, the revenue is generated by a different business model. AOL charge for similar services, which model is working the best??? (generates the most revenue) The music and writing industries need to explore some different models, because society is changing, both in technology and lifestyle.

       

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    Wolfger, Nov 20th, 2007 @ 4:51am

    ???

    You mean, I have to leave a comment to sign up for Techdirt's Daily Email? If I comment twice, will I get 2 copies a day? Or if I don't check the box next time, will it unsubscribe me?

     

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    Haywood, Nov 20th, 2007 @ 5:14am

    Make me feel better about being blatant

    Since I can't take a walk without infringing, I might as well get stuff I really want.

     

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    Killer_Tofu (profile), Nov 20th, 2007 @ 5:31am

    Bad Laws ..

    .. are meant to be ignored. That is about the only way we public seem to have to change the laws anymore. The politicians in DC obviously won't listen to us anymore since we can't contribute millions to their campaigns (and give them a nice board position to retire to where they will make millions more). Its that whole catch 22 where they pass laws to give the corporations more money through one way or another, and in turn the corporations have more to give to the next politician for sale on the open market.

    However, if over 50% of the public is breaking a law, maybe, just maybe, they will listen. Maybe.

     

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      Anonymous Coward, Nov 20th, 2007 @ 6:45am

      Re: Bad Laws ..

      However, if over 50% of the public is breaking a law, maybe, just maybe, they will listen. Maybe.
      Nah, they'll just put 50% of the public in prison.

       

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    Overcast, Nov 20th, 2007 @ 5:41am

    I heard some guy playing music in the car next to me on the way to work? Have I sinned against the RIAA?

     

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    fat Tony, Nov 20th, 2007 @ 6:31am

    to Overcast

    You were stealing that transmission...and he was illegally sharing it with you...both of you...$10 Million and 5 years in prison. NOW!

     

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    Just Me, Nov 20th, 2007 @ 7:29am

    # 11

    No - not prison - sue them. Prison gets you no money in return. If you sue 50% of the population you make a bundle!

     

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      Anonymous Coward, Nov 20th, 2007 @ 8:10am

      Re: # 11

      No - not prison - sue them. Prison gets you no money in return.

      It just makes money for different people. Law enforcement and the prison system are big business these days. And while they're in prison you can use them as slave labor. (The 13th amendment allows slavery as criminal punishment.)

       

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    Dave, Nov 20th, 2007 @ 7:32am

    Morality

    Since no one is going to prison over the terrible misdeeds of Mr. John, then he must be doing something right. It is only wrong if you get caught.

     

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    Yep, Nov 20th, 2007 @ 8:10am

    Let download

    I gonna download the internet just to piss them off

     

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    jrleviticus, Nov 20th, 2007 @ 8:48am

    I read a very interesting point of view on this not long ago that spoke about the problems with this subject. ( probably infringement sharing it).

    The point was made that people before us, our fathers preceding generations etc. came up with ideas, inventions, revelations etc. and we use what has been gained from them to come up with what we have now and that becomes our children's inheritance and the process continues.

    How can we claim intellectual property when everything we come up with builds off 'intellectual property' of others who come before us, who built off those before them and on and on.

     

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    Rich, Nov 20th, 2007 @ 9:42am

    Prove you know what you're talking about

    As one who works in libraries I have a pretty good idea of what constitutes "fair use" and most of your examples above are not genuine violations of copyright, but are in fact examples of "fair use". So prove to us you really understand the issue--discuss whether quoted excerpts are no longer "fair use" under DMCA (you should know what that is, so I won't spell it out) and what things do constitute "fair use", or whether American courts accept that DMCA has swept away "fair use"...

     

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      Mike (profile), Nov 20th, 2007 @ 4:01pm

      Re: Prove you know what you're talking about

      As one who works in libraries I have a pretty good idea of what constitutes "fair use" and most of your examples above are not genuine violations of copyright, but are in fact examples of "fair use". So prove to us you really understand the issue--discuss whether quoted excerpts are no longer "fair use" under DMCA (you should know what that is, so I won't spell it out) and what things do constitute "fair use", or whether American courts accept that DMCA has swept away "fair use"...

      You must be new around here... We talk about fair use and the DMCA all the time. And, um, it's rather rude to go somewhere where you clearly don't know your hosts and demand they "prove" something...

      Anyway, as you're probably aware, the big copyright players insist that there's no such thing as a fair use "right." It's merely a defense -- and it depends on a variety of things. Therefore, according to them, you cannot just "claim" fair use -- you can only use it as a defense after you are shown to infringe. In other words, those examples all do "infringe," though the prof could later argue fair use in court.

      On top of that, there is no hard and fast definition of fair use -- but rather a set of "tests" which are subjectively applied, meaning that you cannot say with any certainty that these are fair use -- which is part of the point he's proving with the paper.

      Anyway, if you take a look around at our past writings, I think you'd find that over the past decade we've been writing on Techdirt we're well aware of copyright issues and fair use, and there's no need to demand we "prove" anything.

       

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    evgen, Nov 20th, 2007 @ 10:03am

    Lazy law profs and poor peer-review seem to be the

    The problem with the story of Professor Strawman in this particular paper is that the cases listed as infringement (save one**) are in fact not examples of copyright infringement for which there is statutory relief. In every other example provided in this paper there is either direct case law ruling the act to be non-infringing, or the event is covered by existing fair use doctrine.

    In short, this paper is a big lie.

    It is really quite a shame, because if the author of this paper was not quite as lazy as he appears it would have been possible to create a list of actual everyday acts which were minor (but _real_) acts of copyright infringement and then demonstrate how technological progression might magnify the quantity and impact of these minor activities.





    ** The only action listed which really an infringement is when the law prof copies cases, analysis, and summary of recent decisions by the Supremes and passes them out in class without any sort of comment, editing, or markup that would make handing them out a transformative act he runs afoul of "the Kinko's case" -- anyone want to say something about how they only infringing act was performed when this "law professor" decided to be a _lazy_ law professor?

     

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    Nyle, Nov 20th, 2007 @ 10:12am

    A simple change that will never happen.

    @BigPicture - That's a good view of what's going on. However, the old school copyright holders are working hard to eliminate "Fair Use" by enforcing DMCA on content that is protected. Thereby making it illegal for you to even make a backup copy.

    I for one can envision one simplification of copyright law in the area of "Fair Use", I would define Fair Use to be the following - "When you purchase any content you gain exclusive rights to use that content in any form, on any device one copy at a time. Should copyright holder release a new version of said content without modification of original source media you are entitled to an at cost "upgrade" to the latest version plus a minor fee. The total charge not to exceed the actual cost of manufacturing media + 2% or for digital download 2% of the cost purchasing remastered digital download content new. You may also make any derivative work from said content for completely non-commercial purposes."

    What this does is, if I buy a movie, photo, book or song, I gain full rights to use one copy of that content at a time - period. I can make as many copies as I want and put it on as many devices as I want. You are entitled to a virtually free upgrade, If they decide to re-release the same content without actually changing the original content, as in not re-performing it, and only re-master it to "improve" the quality and then re-release it on another media or in another digital format. You are entitled to this because you bought lifetime rights to the work not just to rights to the specific copy of the work. Now before you shoot down my simple recommendation - wrap you head around it some more.

    I bought a lot of records and tapes from specific artists. When they came out on CD, I was required to once again buy the CDs if I wanted to move to the new format. But I had already paid for the rights to those specific copyrighted materials. With my new simple fair use right they would have been required to give me a CD of each artist at cost + 2%. When the same works came out as digital download I would have paid them 2% of the cost of buying the digital tracks online.

    Why doesn't the industry like Digital? For two reasons, I can give you an exact copy of the work and they can't simple re-master and re-release it on another media and get everyone to buy it again. Once it's a full quality digital copy of the original or adequate quality digital copy, you can't get better than the original content after all, you can't get everyone to pay for it again.

    If my fair use was implemented so that everyone knew what there rights are in this one area would go a long way to simplifying copyright law while still protecting the rights of the copyright holders. Of course they'd rather you paid them ever time you played or used any of their content. They don't want to sell lifetime use rights. They love the pay for play model.

     

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    barrenwaste, Nov 20th, 2007 @ 10:13am

    Irony

    You do all realize that a big part of this country was founded by criminals? Many of our ancestors were sent here to free up space in debters prison. After the revolt they swore that such an institution should never poison our shores....

    I have been saying this for years, when the majority of the population comitts multiple crimes simply going through thier daily life, then there is something wrong with the laws, not the people.

    Look at the sexual misconduct laws, the copyright laws, and the alcohol laws. It is possible to rack up a life sentence and untold millions simply going to a nightclub, trying to pick up a chick, failing, retreating with wounded dignity to your pad, and finding solace in a good first person shooter. That is flipping outrageous.

     

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    Dan, Nov 20th, 2007 @ 10:53am

    Spread The Love

    I a small fish in the pond. Follow the lead of federal judges that allow suing gun makers when a bad guy pops up in a crowd.

    Let's take down Samsung, Sony, IBM, Dell etc. for giving me the tools to commit copy crimes. No! Wait! Let's go after Al Gore who (by his own admission) invented the internet from which I do the majority of my theft.

     

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    Dan Anderson, Nov 20th, 2007 @ 1:00pm

    Have you heard of fair use?

    Most or all of the cases you cite are considered "fair use." I understand the point you're trying to make and copyright law is obviously biased for media companies, with little or no penalty for false copyright claims made by media companies. However, lets not use hyperbole that the other side can easily blow a hole through. (c) 2007 DEA (just kidding).

     

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      BernardoVerda (profile), Nov 5th, 2013 @ 5:23pm

      Re: Have you heard of fair use?

      As I understand it, Fair Use is really just a defence, which can be offered in court, rather than the law...

      It's an after-the-fact defence -- if you can persuade the authorities that it applies to your use of the material in question. You have to persuade the judge that your particular use was, in context, actually fair use.

      In the mean time, by contrast, any bozo can issue a DMCA takedown notice, and your counter-claim that your use is plainly and self-evidently "fair" nonetheless doesn't prevent your material from being blocked, or from being co-opted as an income source from the complainant.

       

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    Steve R. (profile), Nov 20th, 2007 @ 1:56pm

    Imitation Hits the Marketing Business. Again.

    New York Times article "Imitation Hits the Marketing Business. Again". The NY Times writes; "The issue of what constitutes originality in ads — and what might instead be homage, borrowing, mimicry, copycatting or plagiarism — has been vexing industry professionals for decades. Generally, although an idea cannot be copyrighted, in some instances a specific expression of the idea may be protected. The Internet has made it easier to find and widely publicize perceived similarities in campaigns. Now, even when ads appear thousands of miles apart, comments can be made about their apparent commonalities."

     

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    John, Nov 20th, 2007 @ 2:04pm

    I wish I were a suer

    I wish I were a "suer" (a person who makes his money by suing other people). That way, I would figure out how to monetize the sums talked about in this report and get my hands on the potential $4 billion per person. Heck, in the US alone, that's $4 billion x 300,000,000 people or... a whole heckava lotta money!

    Okay, sure, maybe I can't actually get $4 billion from every person, but I'll start with the richest people in the US and work my way down.

     

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    Yuliy, Nov 20th, 2007 @ 2:23pm

    Fair use

    Fair use is nice as a defense, but according to the ??AA is not actually a law, but a way you can defend yourself if you do get sued. Thus the point is that you can get sued for all of those, and then have to argue that it IS indeed fair use.

     

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    Anonymous Coward, Nov 20th, 2007 @ 9:47pm

    Gene Simmons

    Sounds like a Gene Simmons kind of world.

     

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    mookie von zipper, Dec 2nd, 2007 @ 9:07am

    the infringement age

    "copyright infringement is your best entertainment value" - negativland

     

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    Ron, Dec 6th, 2007 @ 8:53pm

    "copyright infringement"

    We all can blame Sen. Orin Hatch of Utah. He's the one that allowed the Movie and Music industry to write their own laws. And then our wonderful Senators rubber stamped them into law. They received some wonderful gifts for their upcoming elections. If you try to contact Orin Hatch's office... He only allows contact to people that live in his state. So he's not concerned with what damage he has done to our rights.
    And now they are coming out with Blu-Ray disc's. So now the industry wants us to buy all new movies on the new format. What a rip off...!

     

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    devin (profile), May 12th, 2009 @ 11:02am

    Fair use and transformative works

    The article assumes that copyright somehow has a universal application, which it does not. Almost all of those examples are fair use or transformative works, and even under current supposedly "strict" copyright laws, they would be easily defeated and the accused would go free.

     

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    Daz, May 12th, 2009 @ 11:43pm

    We copy things in our heads all the time, so...

    when the technology comes along to stream our thoughts/memories etc we will find our own minds under attack from copyright laws' overreach...
    seriously, that's how our brains work, by keeping many many copies, some transformed (who has a perfect brain then?), etc etc
    Thought crime will be next target of copyright proponents balckmail scheme (while publicly announcing they have stopped harassing pirate minds to placate the government, of course)

     

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    Anonymous Coward, Nov 5th, 2013 @ 7:03pm

    I'm always infringing!

     

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