Infringement Nation: Copyright 2.0 and You.

• Author: Menell, Peter S.
• Position: Book 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.g., vinyl, celluloid) in which copyrighted works were embodied. (3) Even after analog copying technologies emerged--such as photocopying machines, tape recorders, and videocassette recorders--noncommercial piracy remained controllable. Such technologies degraded the quality of reproduction, entailed significant media and reproduction costs, often necessitated greater distribution costs than authorized goods, and exposed distributors to infringement liability. Furthermore, noncommercial analog reproduction did not "scale." Photocopied books never presented a serious threat to published books. Pirated cassettes never made much of a dent in record industry revenues. (4)

Digital technology and the Internet changed all of that in the 1990s. Computers and rewritable media virtually eliminated the costs of reproducing works because bits do not require any significant tangible resources. Web 1.0--based on client-server functionality--put Internet service providers in the role of content distributors. Web 2.0--encompassing peer-to-peer, YouTube, social networking, and related technologies--put that power into the hands of netizens. (5) The positive side of this evolution is that authors, recording artists, filmmakers, bloggers, and social critics can now reach large audiences easily and instantly. The downside, however, is that pirates can do the same. Noncommercial file-sharing of MP3s has made a tremendous dent in record sales. BitTorrent (6) and cyberlockers (7) make even large digital files--such as high-definition feature films--relatively easy to find and transmit across the Internet. Advances in digital-book-reader technology have made reading text on a machine enjoyable, engaging, and more convenient than reading print media, bringing file-sharing of books into vogue.

Although the concept of "infringement" raises some definitional questions, (8) 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 works on a daily basis. Much of this content does not infringe copyrighted works of others, although there can be little question, based on the ease of copying and pasting and the sheer volume of such works moving across the Internet, that some "user-generated content" crosses the infringement line. There is also little doubt, however, that a massive volume of clearly infringing "user-uploaded content"--from the latest Lady Gaga sound recording, to the film The Matrix, to the Harry Potter novels--courses through the Internet.

Thus, two principal infringement-related problems have emerged in the Internet Age. First, some copyright owners have sought to throttle the flow of content--including works that do not or should not be seen to cross the infringement line. Second, the vast volume of user-uploaded content of clearly infringing copies of popular sound recordings, films, television shows, and books has seriously disrupted and undermined the principal creative industries. (9)

Infringement Nation explores the ramifications of this new era for the hundreds of millions of netizens. The structure of Infringement Nation offers a promising framework for gauging the level and effects of infringing activity in the Internet Age. Tehranian organizes the chapters around the roles that individuals play in the creative and social processes affecting the copyright system: infringer, transformer, consumer, creator, and reformer. Could this be the book that comprehensively and forthrightly confronts the legal and policy challenges facing the copyright system in the Internet Age?

Alas, Infringement Nation is not that book. Any semblance of balance, comprehensiveness, or empirical rigor quickly veers off into zealous, selective accounts of one side of the tired minimalist-versus-maximalist copyright debate. 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.

In placing so much emphasis on the first of the two principal Internet Age infringement problems, Infringement Nation conflates distinct regions of the "nation" with the entire population. This Review seeks to provide a more comprehensive and balanced account of the modem infringement landscape and more fruitful directions for policy reform. Part I highlights how Infringement Nation distorts the infringement "census" by exaggerating justifiable concerns about squelching noninfringing user-generated content while ignoring the serious problems posed by rampant infringing user-uploaded content in the Web 2.0 era. Part II fills in important regions of the infringement nation. Building on this foundation, Part III critiques Infringement Nation's policy prescriptions and sketches an alternative agenda for tailoring copyright for the Internet Age.

1. INFRINGEMENT CONFLATION

   Infringement Nation divides into two principal parts: Chapters 1 through 4, which aim to describe the "State of the [Infringement] Union," and Chapter 5 and the conclusion, which offer policy prescriptions and philosophical ruminations building upon the descriptive foundation. This Part examines Infringement Nation's descriptive foundation. As with any edifice, the strength of the foundation is critical to what is built on top--in this case, normative prescriptions. A solid foundation requires thorough evaluation of the terrain and careful framing. A good census of infringement patterns should ensure that all of the key societal constituents are considered and that the effects of copyright law on these communities...