How much copyright infringement have you done today?

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A former colleague and a friend of mine, John Tehranina has written a nice article on the absurdities of some of the copyright laws.

You can read the whole article here, but the gist is that we have become an “Infringement Nation.” In a typical day, just by engaging in average activities, unwittingly, we infringe copyrights of others.

By following a typical day in a law professor’s life, he shows that even without using P2P, or downloading a single mp3, he has committed 83 acts of distinct 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.

… 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.

His conclusions are:

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.

Of course, his examples do not take in to account the established boundaries set by the “fair use” law and “implied license” laws, but the point is well taken.

One could argue that this is not really specific to copyright law, by driving over 65 MPH on the highway, John (John, the hypothetical law professor, not John Tehranian) probably breaks the law everyday.

I would go even further that by using his internet explorer, and by visiting a website and possibly joining the Facebok social network, he is probably infringing on several patents too.

Is that a reflection on how IP laws generally are and there is no inherent way to write them so that the line of infringement and non-infringement is clear?

I don’t think so, I think one generally relies on the laws and the judicially created exceptions to the laws to conduct one’s daily lives (in the case of copyright law - the doctrine of fair use) and interpret the scope and the boundaries established by the law. The exceptions to the written laws are, very often, created precisely to address the issues of the kind John points out.

I do not think that he infringed a copyright on emails sent to him by others by quoting the emails back to them. It would a be fair use and there may also be an implied license granted by the e-mail authors to John to use that email. One can analyze each one of his examples and I believe that most of them will fall within the fair-use and/or implied license and/or education purposes license realm.

But I can not agree with him more, in terms of the need for clarity in the law, and more importantly in the perception of the scope of the applicable law.

Via Slashdot .


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