Infringement Conflation

By Menell, Peter S. | Stanford Law Review, June 2012 | Go to article overview

Infringement Conflation


Menell, Peter S., Stanford Law Review


INFRINGEMENT NATION: COPYRIGHT 2.0 AND YOU. By John Tehranian. ([dagger]) New York, N.Y.: Oxford University Press. 2011. xxx + 289 pp. $50.00.

Following the most tumultuous decade in copyright history, John Tehranian's recent book--Infringement Nation: Copyright 2.0 and You--promises a broad-ranging account of the complexities of copyright infringement in the Internet Age. There can be little doubt that copyright infringement has exploded since Napster ushered in Web 2.0 a little more than a decade ago. On the positive side of the ledger, millions of ordinary netizens create, distribute, and share countless new and original user-generated works on a daily basis. There is also little doubt, however, that a massive volume of clearly infringing user-uploaded professional content courses through the Internet.

This Review critically analyzes Tehranian's selective account of the "infringement nation." While jammed with historical tidbits, intriguing anecdotes, and illustrations of overenforcement by copyright owners, Infringement Nation barely mentions the effects of unauthorized distribution of copyrighted works on composers, recording artists, film producers, screenwriters, novelists, or journalists. What little Infringement Nation has to say about Internet piracy centers on the risk of crushing liability that copyright law imposes on file-sharers. This distorted infringement "census" leads to misdirected policy recommendations.

After exposing the limitations of Infringement Nation's lens, this Review fills in important missing regions from the census--the content industries that have been struggling to deal with rampant unauthorized distribution of their works. With this fuller picture of the infringement landscape in mind, the Review closes by exploring the challenge of channeling consumers back into the content marketplace.

INTRODUCTION

I.   INFRINGEMENT CONFLATION
     A. The Individual as Infringer
     B. The Individual as Transformer
        1. Limiting doctrines
        2. Licensing markets
        3. Tolerated use
     C. The Individual as Consumer
     D. The Individual as Creator

II.  ADDING DIGITAL PIRACY TO THE INFRINGEMENT CENSUS
     A. Sound Recordings
     B. Motion Pictures
     C. Publishing

III. RETHINKING COPYRIGHT POLICY FOR THE INTERNET AGE
     A. Rebalancing Users and Creators
     B. Rebalancing Sophisticated and Unsophisticated Parties
     C. Rebalancing Transformers and Creators
     D. The Glaring Omission: Internet Piracy

CONCLUSION

INTRODUCTION

Following the most tumultuous decade in copyright history, (1) John Tehranian's Infringement Nation: Copyright 2.0 and You (2) promises a broad-ranging account of the complexities of copyright infringement in the Internet Age. Dramatic advances in content-distribution platforms in the 1990s enabled all those connected to the Internet to reach vast audiences at the touch of their keyboards or mobile devices. These innovations have greatly enhanced access to all manner of creative works with and without authorization of the copyright owner--which is the Internet's great virtue for consumers, and great challenge for creators and publishers.

Prior to the Internet, anyone seeking to reach a large audience had to go through content industry producers and intermediaries. The film, television, radio, recording, publishing, and broadcasting industries controlled distribution and acted as gatekeepers--licensing in copyrighted works and screening out unauthorized works, typically with a cautious bent. Custom and practice often boiled down to "when in doubt, leave it out."

Due to the relatively limited distribution channels (e.g., theaters, licensed broadcasters, bookstores, record stores), copyright owners could detect and ferret out unauthorized content relatively easily. Noncommercial infringement--such as home copying--was also limited for much of copyright history because of the "natural" protection afforded by the underlying media (e.

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