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 worstcase
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.
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, he would be indisputably 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.
I wonder how much I’ve tallied up as a result of quoting his article on this blog entry? In any case, it sounds like we’re in need of some copyright law revisions.