Fringe Infringements

John Tehranian, a University of Utah law professor, recently published an article “Infringment Nation” where he claimed that a typical American might be violating copyright at an astonishing rate: 83 acts of infringement and a potential liability of $12.45 million a day.

Those sort of numbers echoed by BoingBoing, by Valleywag, by Ars Technica, and by David Ardia of the Citizen Media Law Project of the Berkman Center at Harvard Law School.

In devising a list of possible infringements, Tehranian assumed away any fair use defense. “Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works.” But assuming away fair use is like assuming away seatbelts. (Tehranian cited a previous paper of his, Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal, in the footnote for that. More on that later.)

I'm not a lawyer, so I can't interpret the law for anyone else. But I ought to be able to interpret it for myself. I'd like to get a sense for myself whether I am infringing copyright anywhere near where he suggests. Here's his list:

  1. Replying to or forwarding emails, wherein the original text is reproduced. If you're forwarding private emails to a third party, you probably should be worrying about privacy more than copyright. Tehranian cites cases where the copyrighted material was intended for publication.

  2. Making class copies. Here's the example: a professor makes copies of “three just-published Internet articles presenting analyses of a Supreme Court decision handed down only hours ago.” Tehranian states in a footnote that this could be problematic, since, despite “the courts have still managed to find a plethora of instances where use of a copyrighted work for teaching, research or scholarship constitutes infringement.” But this isn't one of those instances. As the 1976 Copyright Act was being developed, a committee of educators, publishers, and educators submitted guidelines for consideration by the Congress (officially: Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions) clearly make an allowance fir “spontaneous” copying, defined as such: “The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” These were not made law, but they were included in the House report as a note on section 107, and according to Ann Bartow of the University of South Carolina, the courts have generally followed the guidelines.

  3. A doodle of a famous building. Tehranian cites four sections of title 17, but he neglected § 120(a) — “The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”

  4. Reading a poem in class. This is clearly fair use for educational purpose. BMG v. Gonzalez only applies by its mere mention of poetry.

  5. Emailing photographs that a friend made and supplied. See #1. If your friend gives you pictures and then turns around and sues you for copyright, he's not much of a friend. Or he's going to have to claim the chutzpah defense.

  6. Getting a tattoo of a copyrighted work and displaying it publicly. There's no precedent of this. The case Tehranian cites is a bit different: Matthew Reed, a Portland, OR, tattoo artist, was distressed that a tattoo he inked on NBA star Rasheed Wallace's skin was being displayed in, and featured in, advertisements for Nike. Reed registered the tattoo's design and sued Nike for infringement. This was eventually settled out of court for an undisclosed amount.

  7. Singing “Happy Birthday To You,” having it recorded by a camcorder, and incidentally including a framed piece of artwork on the wall in the resulting video. This is two theoretical infringements: the performing and the filming. Tehranian cites how movies must pay to use songs like “Happy Birthday To You” (owned by the Warner Music Group until 2030); similarly, restaurant establishments often compose their own birthday jingles to avoid paying the toll. Fair enough. But when a group of people sing a copyrighted song amongst themselves, any reasonable person (such as Marybeth Peters, the Registrar of Copyrights, testifying before Congress in 1997) can see that is already exempted by § 110(4). If it's not, then somebody more familiar with case law should produce a judicial ruling which says otherwise. There's also the precedent of wide met by a widespread public backlash (NYT 12/17/1996: “Ascap Asks Royalties from Girl Scouts, and Regrets It”)

  8. Purchasing a magazine which includes copyright-infringing material. Tehranian cites MGM v. Grokster “One infringes contributorily by intentionally inducing or encouraging direct infringement.” But he cut out the second part of the sentence: “and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it.” Clearly the court was referring to the software company (Grokster) here that was doing the profiting. In BMG v. Gonzalez, the defendant was likened to a thief for not paying for music she was using. Clearly, someone who pays money for a magazine believed to be legitimate is neither profiting nor stealing.

This isn't to say that that U.S. copyright law is perfect, or is always interpreted fairly. It's just that there are much more solid examples. (Lessig has obviously mined this before). One can appreciate what Tehranian is trying to do, but it's not clear how this is good for anything more than echoing blog posts.

Obviously, the threat to the average music file sharer is real. But this whole exercise seems to invite distrust in the whole copyright system. And that can't be Tehranian's intention. In his own article that he cited on fair use's fickleness, Whither Copyright? in the 2005 Brigham Young University Law Review, he clearly holds firm to the viability of copyright. In the paper, he calls for a wholesale clearing of noncommerical transformative uses, while also suggesting an “intermediate liability” for commercial transformative uses, which substitutes fair compensation for penalties.

For example, if I write a satire of the 2008 elections based on Star Wars, I can make use of the storyline, characters (e.g., Yoda, Darth Vader, Luke Skywalker) and terms (e.g., Jedi, lightsaber, Star Wars) from the movie series, but I cannot attribute my satire to George Lucas. If anything, a disclaimer on my work should make it clear that it is an unauthorized derivative work. However, George Lucas, as the original copyright holder to Star Wars, would be entitled to a presumptive 50% of any profits that result from the creation of my work.

It's only 2007, and such a satire has been produced already. A couple of weeks ago, the Times reported (er, blogged, er, press released) that the online animation company AniBoom is doing this; they've raised $4.5 million in venture funding. (I don't know enough about copyright law, but it seems like a satire using the Star Wars universe doesn't have the same protection as a satire of Star Wars, such as Mel Brooks's Spaceballs.)

Hardly a week goes by before somebody else is using a Star Wars tie-in as a crutch for humor. On Thanksgiving, the online newscast Rocketboom gave its anchor Joanne Colan the day off and instead assembled a video combining footage of the Macy's parade with the the music of the Star Wars “Imperial March.” They remembered to identify the composer at the end (John Williams) but neglected to identify who had performed it (perhaps the London Symphony Orchestra, from the original soundtrack released by RCA.

AniBoom and Rocketboom are not educational institutions. Viewers may learn from them, but their use of Star Wars here is not for the purpose of critical inquiry; its for a punch line. Yet while their nature is commercial, their use of Star Wars material just happens to be in media which doesn't include commercials, and thus there's no direct revenue. Therefore the 50% of profits wouldn't help Lucasfilm in these cases.

Thanks to the explosion of amateur media over the last several years, there's been a lot of interest in reforming copyright. But it's been met by very little interest by the Congress, and listing fringe infringement cases won't help the case. Maybe energy could be better directed at media companies to explain their copyright practices better. If the copyright crapshoot of today is undesirable, why not encourage copyright holders to publish pricing schedules? The website for Lucasfilm Licensing is just a single page. As such, the use of Star Wars music for a measly video blog post is seemingly determined by the whim of the licensing department. Another company that keeps Americans in the dark about what is copyright infringement: YouTube. They could provide a fair use challenge to enable users to to declare that they believe that they are uploading copyrighted video under fair use. They don't

By clicking "Upload Video," you are representing that this video does not violate YouTube's Terms of Use and that you own all copyrights in this video or have express permission from all copyright owners to upload it.

In other words, YouTube is not inducing users to violate copyright. They're just asking users to make false declarations – which, morally, is not much better.

Two days after I wrote this, law professors Matthew Sag and Mark Schultz wrote a similar (and better-grounded!) rebuttal to Tehranian's paper. Tehranian responded, and Sag & Schultz wrote back— pointing out, that Tehranian's nuance that the estimate was a "worst-case scenario" was lost in the echoes of BoingBoing, TechDirt et al: "We are concerned that the $4.544 billion figure is likely to be quoted in the media and policy debates for years to come as one of those too-good-to-pass-up statistics.  Such a result is, after all, what follows in 84.544% of the cases that scholars generate dubiously precise, grossly exaggerated statistics for rhetorical effect."