Infringement Meme

A comment at The Volokh Conspiracy, pointed me to “Infringement Nation,” a paper discussing the gap between copyright law and our social norms. The part you should go read is IV.A. “Infringement Nation,” which starts on page 8. Due to extensive footnotes, the 1000 words are spread across six pages.

The shorter version is that common activities are technically illegal, and the only things stopping billion of dollars of lawsuits (per person, per year) are good will and the difficulty of enforcement. If you include the text of an e-mail in a reply, that is an illegal reproduction of someone’s original work. If your game or music volume is too loud, that could be an illegal public performance of a copyrighted work.

On one hand, hey, can we track down those jerks who copy others’ blogs to generate faux content around a bunch of ads? Every single post on there is a potential $150,000 offense. How about those jerks who play their car radios loudly enough to rattle your windows? Illegal public performance, clear infringement.

On another hand, how many gaming blogs are posting their sixth screenshots? Did you contact the publisher for permission to reproduce artwork from their game? You are also making a derivative work, and your chat box may show infringement of other players’ copyright in their (short) textual creations. You are also distributing said illegal works, and engaging in contributory infringement by linking to other infringing blogs. Given the web of sites participating, there may be grounds for conspiracy or racketeering charges. That the developers want your free publicity right now does not mean that they have granted you legal permission to violate their copyrights.

Many people take the high ground on not stealing music or engaging in file sharing. Have you considered how you might be “a little pregnant” on violating copyright law?

: Zubon

If you read this post aloud, you created an unapproved derivative work. If someone else was around, you also conducted a public exhibition. Where is my royalties check?

8 thoughts on “Infringement Meme”

  1. I always chuckle of the little intermission ads for the NFL, MLB, NASCAR, NBA,…practically any sporting event will tell you that any description of the broadcast is strictly prohibited and yet people around the water cooler the next day will discuss it without thinking about one iota of the possible repricussions.

    Personally, I think the whole copyright garbage is for the birds. If someone can create a viral site to go around copyright laws and just base it off of fair use, it’ll squash YouTube.

  2. Which is why Facebook wants to own all your uploaded content.

    Thanks for the paper link. I am going to read it on the train home.

    However, (and I don’t know if the paper fairly covers this) a lot of what you write as copyright infringing may be vanilla infringement, but things like implied licensing, actual licensing (read almost any major MMOs license on using their works), fair use (e.g., ability to copy portions for review), federal courts dockets, federal court costs, federal court judges not wanting their time wasted, squeezing blood from radishes, EFF defense, becoming the bad guy, etc. etc. etc., and, I feel, the average person is pretty safe.

    IMHO, it’s like those old laws in New England making it illegal to walk backwards or hang underwear outside to dry on a Sunday: Technically illegal, practically not.

  3. I take it that you’re from the US, as some of those points (especially the last one with reading out aloud with Amazon’s Kindle) sparked much discussion (and laughter) here in Europe. IANAL but I’m fairly sure most European countries have different laws.

  4. Let me introduced you to something called “Fair Use” (

    Copyright Act of 1976, 17 U.S.C. § 107

    “Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

    There is no blanket measure of what is fair use and what isn’t. This judgment is to be made in a civil court upon a copyright holder making a claim of injury. I would say most of the uses listed in your post would fall squarely inside the bounds of fair use if tested in court.

  5. Brandon, I must encourage you to read the article, since it is by a copyright lawyer who addresses all that.

  6. Remember the Mystere incident? Player writes a torture-porn story using the EQ theme and suggesting the victim is a minor, and after fielding complaints and threats to take it to the media (remember that this was the same time that Hollywood execs were being hauled in front of Congress, and SOE was under Sony Pictures) they use their copyright claims to suppress the stories as “Derivative Works”.

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