Tuesday, November 20, 2012

Infringement Nation - How We All Rack Up $12.5 Million in Violations Daily

Were you alive today and did you participate in the modern world?
Then please feed the copyright troll $12.5 million, thanks!
As a follow up to my post yesterday about how the House Republicans proposed a set of unprecedentedly wise and common-sense reforms to the U.S. copyright system (and then folded under withering pressure from MPAA and RIAA lobbyists in less than 24 hours), I thought I'd post the following story to illustrate just how screwed up the current copyright system is.

This is a story taken from "Infringement Nation: Copyright Reform and the Law/Norm Gap," a SSRN paper by John Tehranian. It is a brilliant demonstration of the gap between how we use (and disregard) copyright laws in our daily lives and the steep penalties for which we could be held responsible, if copyright holders were able to impose 100% of current copyright laws' penalties 100% of the time.

Without a small sense of irony, I'm reproducing the below story completely without permission, thereby racking up a small part of the $12.5 million in copyright infringement I'll probably (mostly) unwittingly commit today. If you want to check out the (occasionally hilarious) footnotes to the below story, which detail why and how our fictitious John might be held liable for all of his infringing activities, check out the original paper.
To illustrate the unwitting infringement that has become quotidian for the average American, take an ordinary day in the life  of a hypothetical law professor named John. 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.

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. Within an hour, the twenty reply and forward emails sent by John have exposed him to $3 million in statutory damages.
After spending some time catching up on the latest  news, John attends his Constitutional Law class, where he distributes copies of three just-published Internet articles presenting analyses of a Supreme  Court decision handed down only hours ago. Unfortunately, despite his concern  for his students’ edification, John has just engaged in the unauthorized reproduction of three literary works in violation of the Copyright Act.
Professor John then attends a faculty meeting that  fails to capture his full attention. Doodling on his notepad provides an ideal escape. A fan of post-modern architecture, he finds himself thinking of Frank Gehry’s early sketches for the Bilbao Guggenheim as he draws a series of swirling lines that roughly approximate the design of the building. He has created an unauthorized derivative of a copyrighted architectural rendering.

Later that afternoon, John attends his Law and Literature class, where the focus of the day is on morality and duty. He has assigned e.e. cumming’s 1931 poem  i sing of Olaf glad and big to the students. As a prelude to class discussion, he reads the poem in its entirety, thereby engaging in an unauthorized public performance of the copyrighted literary work.

Before leaving work, he remembers to email his family five photographs of the Utes football game he attended the previous Saturday. His friend had taken the photographs. And while she had given him the prints, ownership of the physical work and its underlying intellectual property are not tied together. Quite simply, the copyright to the photograph subsists in and remains with its author, John’s friend. As such, by copying, distributing, and publicly displaying the copyrighted photographs, John is once again piling up the infringements.

In the late afternoon, John takes his daily swim at the university pool. Before he jumps into the water, he discards his T-shirt, revealing a Captain Caveman tattoo on his right shoulder. Not only did he violate Hanna-Barbera’s copyright when he got the tattoo—after all, it is an unauthorized reproduction of a copyrighted work—he has now engaged in a unauthorized public display of the animated character. More ominously, the Copyright Act allows for the “impounding” and “destruction or other reasonable disposition” of any infringing work. Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent “destruction.”

That evening, John attends a restaurant dinner celebrating a friend’s birthday. At the end of the evening, he joins the other guests in singing “Happy Birthday.” The moment is captured on his cellphone camera. He  has consequently infringed on the copyrighted musical composition by publicly  performing the song and reproducing the song in the video recording without authorization. Additionally, his video footage captures not only his friend but  clearly documents the art work hanging on the wall behind his friend—Wives with Knives—a print by renowned retro-themed painter Shag. John’s incidental and even accidental use of Wives with Knives in the video nevertheless constitutes an unauthorized reproduction of Shag’s work.

At the end of the day, John checks his mailbox, where he finds the latest issue of an artsy hipster rag to which he subscribes. The’zine, named  Found, is a nationally distributed quarterly that collects and  catalogues curious notes, drawings, and other items of interest that readers  find lying in city streets, public transportation, and other random places. In short,  John has purchased a magazine containing the unauthorized reproduction, distribution, and public display of fifty copyrighted notes and drawings. His knowing, material contribution to  Found’s fifty acts of infringement subjects John to potential secondary liability in the amount of $7.5 million.

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.
So, yes, there we have it - a professor leading an unremarkable life, doing nothing that any of us normal people would consider illegal or out of the ordinary - and in the course of one day, he's managed to rack up $12.5 million in damages (and that's only civil damages - criminal damages would be on top of that amount), or $4.5 billion in damages per year. And in addition, he faces at least a mandated laser-removal of his tattoo, if not imminent destruction of his person. Ouch.

If, in the course of living a totally normal life, the laws are written such that you incur $12.5 million in damages EVERY DAY, then there is a serious disconnect between what the laws say and what they mean / how they are applied - and the laws are obviously wrong and have to change.

Saturday, the Republicans gave me hope that this would happen - but then they took away that hope, the bastards.

P.S. We'll see if SSRN tells me to remove this story that I have reproduced without permission - oh, that would be seriously delicious irony.

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