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Source link: http://archive.mises.org/18172/we-are-all-copyright-criminals-john-tehranians-infringement-nation/

We are all copyright criminals: John Tehranian’s “Infringement Nation”

August 22, 2011 by

In his paper Infringement Nation: Copyright Reform and the Law/Norm Gap, law professor John Tehranian explains how the normal activities (see pp. 543-48) of a typical Internet user–he takes an “average American, …take an ordinary day in the life of a hypothetical law professor named John”–someone who does not even engage in P2P file sharing–could result in up to $4.5 billion in potential liability annually, for copyright infringement. The acts include:

  • having his email program “automatically reproduce the text to which he is responding in any email he drafts. Each unauthorized reproduction of someone else’s copyrighted text—their email—represents a separate act of brazen infringement, as does each instance of email forwarding….” (twenty emails in an hour: $3 million in statutory damages);
  • distributing in his Constitutional Law class copies of three just-published Internet articles presenting analyses of a Supreme Court decision handed down only hours ago;
  • absentmindedly doodling a sketch of the Guggenheim museum on a notepad during a boring faculty meeting, i.e. making an unauthorized derivative work;
  • reading a 1931 e.e. cumming poem to his Law and Literature class, an unauthorized public performance;
  • emailing to his family five pictures his friend took of a local football game–his friend owns the copyright;
  • having a Captain Caveman tattoo and revealing it while swimming at the local university pool: violating Hanna-Barbera’s copyright by the reproduction and public display;
  • singing Happy Birthday to a friend at a restaurant and recording it on his smartphone videocamera, an unauthorized public performance and reproduction of a copyright-protected work–as is the painting on the wall of the restaurant that is captured in the video footage; and
  • reading on his email a magazine that itself has clips of interesting items from other publications, a contributory infringement leading to up to $7.5 million of liability.

As Tehranian concludes:

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, barring last minute salvation from the notoriously ambiguous fair use defense, he would be 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.

And this is just civil, monetary damages; Tehranian did not even include potential criminal liability (but here he cites 17 U.S.C. § 504(c)(2), 506; 18 U.S.C. § 2319, “providing for criminal penalties against certain copyright infringers.”

[c4sif]

{ 19 comments }

Ohhh Henry August 22, 2011 at 8:30 pm

Great article. Any law is garbage if it can’t be easily understood by the victims and perpetrators, or fairly and transparently enforced by the authorities. And by “garbage” I mean uncivil, treacherous and evil.

But what else can government do, if they are to make an decent living from running a protection racket? There’s not much money to be made in codifying and enforcing simple, obvious rules of property and conduct. Those rules are so simple and fair that nearly everyone spontaneously obeys them, nearly all the time. The real money is to be made in creating an elaborate set of complicated, hidden, legal traps for the public, then subtly or unsubtly nudging them into the traps. Then they pounce on them, seize their property, put them in a cage, and shake down the rest of society for a lot of money in order to pay for the imprisonment and rehabilitation of the “criminals”.

Nathan August 22, 2011 at 9:43 pm

I saw a posting on another message board about how all the home design shows on HGTV blur out the paintings in people’s houses, because showing a painting on the air would be copyright infringement. But if we take the law literally, such blurring is insufficient (although it might reduce damages). The copy is made when the painting is videotaped. A sufficiently litigious artist could probably sue for this and win. Another absurdity of copyright law.

Jonathan Bartlett August 22, 2011 at 11:10 pm

Doesn’t “fair use” cover these activities?

Stephan Kinsella August 22, 2011 at 11:55 pm

As Tehranian says: “For the purposes of this Gedankenexperiment, we assume the worst case scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine. Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works.”

I would also say I think many people — those who use the Internet more than average, say — engage in far more acts of infringement than Tehranian lays out–probably leading to 10 times or more the liability he estimates — $50 billion a year per person, or more, for active Internet users. It’s truly insane.

Wildberry August 24, 2011 at 11:21 am

You speak as if this folly of a mind experiment was actually taking place. One has to wonder, Mr. Kinsella, why doesn’t it?

Could it be for the same reasons that every jostle on the bus does not result in charges of battery?

Big Brother August 23, 2011 at 2:18 am

If the folks defining “fair use” have the same mentality as those going after children who sell lemonade, then I wonder what the chances are?

Big Brother August 23, 2011 at 2:12 am

239,893,600 Internet users (as of June, 2010). 239,893,600 x “$50 billion a year per person” = …. Hmm. Deficit problem solved!

nate-m August 23, 2011 at 6:00 am

That’s not as fanciable as you may first thing. One of the commonly referenced figures in used to politically support the USA Federal Government’s war against liberty world-wide is the made up losses our ‘culture’ sustains due copyright piracy abroad.

That is that these people claim that if we were able to go out to places like China or India and go after copyright violators then we could eliminate, if not reverse, our ‘trade deficit’.

Here is a example:
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1583&context=ilj

Intellectual property piracy had pushed the United States and China to the verge of major trade wars three times between 1990 and 1997. While U.S. investment in China had grown since the 1980s, its trade deficit with China had also continually expanded.
Relying heavily on the export of intellectual property products to offset its trade deficits in the world market, the United States had ample reason to see that its intellectual property products served a similar function in the Chinese market.

So not only is IP sacred and people have a ‘right’ to ‘profit from their intellect’ we have people that think the very economy of the USA rests on exporting our anti-freedom policies to other countries.

Big Brother August 23, 2011 at 7:01 am

Holy S**t, Batman! What’s the political equivalent of Murphy’s Law? The one that says, if you can think of an evil thing that a human could do, someday someone will try it (if they haven’t already).
When I heard that a lot of farmers were pouring milk down the drain because the cows or the grass had been irradiated by Chernobyl fallout, I thought, “Someone somewhere will think ‘what a waste’ and try and sell it to unsuspecting 3rd-world consumers. Shore enough, a few months later, radioactive powdered milk showed up on supermarket shelves in Africa.

Brian Macker August 23, 2011 at 6:47 am

“having his email program “automatically reproduce the text to which he is responding in any email he drafts. Each unauthorized reproduction of someone else’s copyrighted text—their email—represents a separate act of brazen infringement, as does each instance of email forwarding….” (twenty emails in an hour: $3 million in statutory damages);”

That’s idiotic for a layman let alone a lawyer to claim.

Stephan Kinsella August 23, 2011 at 7:24 am

First, he explicitly notes it’s a worst case scenario:

For the purposes of this Gedankenexperiment, we assume the worst case scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine. Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works.

And he provides backup for his $3m email liability claim:

In the morning, John checks his email, and, in so doing, begins to tally up the liability. Following common practice, he has set his mail browser to automatically reproduce the text to which he is responding in any email he drafts. Each unauthorized reproduction of someone else’s copyrighted text—their email—represents a separate act of brazen infringement, as does each instance of email forwarding.31 Within an hour, the twenty reply and forward emails sent by John have exposed him to $3 million in statutory damages.32

31 17 U.S.C §§ 102(a)(1), 106(1), 501(a). Although one could attempt to distinguish the existing case law on the matter, courts have deemed fair use rights to a previously unpublished work, such as a piece of correspondence, to be exceedingly limited. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555 (1985) (noting the strong presumption against fair use of unpublished works); New Era Publ’ns Int’l. v. Henry Holt & Co., 873 F.2d 576, 583–84 (2d Cir. 1989) (noting that “a small, but more than negligible, body of unpublished material cannot pass the fair use test” and that under ordinary circumstances “the copying of ‘more than minimal amounts’ of unpublished expressive material calls for an injunction barring the unauthorized use” (quoting Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987))).

One could also argue that John had an implied license. However, such a defense is problematic. As the Copyright Act notes, “[o]wnership of a copyright . . . is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object . . . does not of itself convey any rights in the copyrighted work embodied in the object.” 17 U.S.C. § 202. For example, in an infringement case involving letters penned by J.D. Salinger, the Second Circuit deemed Salinger the owner of the copyrights thereto, even though he no longer owned the letters themselves (he had mailed them). The court then rejected a fair use defense and enjoined the publication of the letters. Salinger, 811 F.2d at 94–95. § 202 and its application, as illustrated in Salinger, call into question the viability of an implied consent defense in the email example.

Under existing secondary liability principles, the maker of this email software also faces potential liability for contributory and vicarious infringement. See, e.g., Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (imposing contributory liability when defendant has knowledge of an infringement and materially contributes to it and vicarious liability when a defendant has the right and ability to control the activities of an infringer and gains a direct financial benefit from these activities). Courts have read these doctrines with increasing liberality in recent years. See Mark Bartholomew & John Tehranian, The Secret Life of Legal Doctrine: The Divergent Evolution of Secondary Liability in Trademark and Copyright Law, 21 BERKELEY TECH. L. J. 1363, 1369–70 (2006).

32 This figure assumes the availability and the assessment of maximum statutory damages in the amount of $150,000 for each of the twenty distinct acts of infringement. 17 U.S.C. § 504(c)(2) (2006).

HL August 23, 2011 at 1:06 pm

Indeed. Let us not forget that absurd laws can and often do lead to absurd results. For example, will RIM, the maker of my beloved Blackberry devices, survive the monster cashflow hit it took on account of an IP troll a few years back? Who knows.

As Tim Wu demonstrates in his book The Master Switch, the law is a tool for those seeking control and cash. IP has evolved into a splendid device for the big and profitable users of it. Everyone else hobbles along in the darkness, never sure when a goblin will pop out from the shadows with an IP complaint.

Brian Macker August 25, 2011 at 5:19 pm

The sender of an email (like the poster of this comment) has given the written text away for free, and made no copyright claim. It’s ludicrous to claim anyone would be likely of being prosecuted for this. It certainly work as an argument invalidate Rothbardian style copyrights. We are still left with the fact that copyrights are grounded in physical property rights, and rights to freely associate and trade via contracts. As Rothbard has pointed out.

Stephan Kinsella August 25, 2011 at 10:19 pm

The sender of an email (like the poster of this comment) has given the written text away for free

Bad legal advice. You do realize that when you write a letter and send it to someone, you retain copyright, right? The recipient can’t publish the letter in a book, say, without your permission, even though you sent it to him. Why is email different? You are just making a layman’s assertion.

, and made no copyright claim.

Since the 1980s you don’t need to make a copyright “claim” or notice or registration to have a copyrihgt. It’s automatic. So it’s irrelevant whether the author “makes a claim”. He HAS a copyright, whether he “makes a claim” or not.

It’s ludicrous to claim anyone would be likely of being prosecuted for this.

Prosecuted? He talked about civil liability.

Brian Macker August 27, 2011 at 6:56 am

“Bad legal advice. You do realize that when you write a letter and send it to someone, you retain copyright, right? The recipient can’t publish the letter in a book, say, without your permission, even though you sent it to him. Why is email different? You are just making a layman’s assertion.”

I just copied your “copyrighted” material. Sue me, lol.

Oztrian August 23, 2011 at 10:58 am

Shoot the messenger.

Plus ca change.

Gordon C Harrison August 24, 2011 at 9:58 am

A point often made in attacking copyright is that it is a ‘privileged monopoly’. This is an argument founded on an inability to understand the scope of copyright. Copyright is not a privileged monopoly, it is a moral human right granted to every person on the planet. All human beings are creative and copyright allows everyone to benefit from the fruits of their creativity. Copyright is an *individual* human right enshrined in article 27 of the UN Human Rights act of 1948.

I say to anyone reading this, respect the creativity of your fellow human beings, it is right that you should do so, be moral, respect their exclusive right to make a living from their creativity, be creative yourself, enrich our culture and enjoy the benefits of copyright granted to you.

Vanmind August 24, 2011 at 3:00 pm

1. Nothing that must be formally codified (i.e. “granted”) could possibly be a right
2. The UN is an institution of organized crime

I have a Fine Arts degree, and I’d be willing to bet that I respect human creativity more than you. Copyright fraud diminishes humanity’s creative output.

Stop speaking as a wishful businessman and start acting like an artist.

Brian Macker August 25, 2011 at 5:14 pm

“Nothing that must be formally codified (i.e. “granted”) could possibly be a right”

A claim which if true invalidates property rights for anything that isn’t nailed down or can’t be constantly watched, or carried with you.

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