Professor Peter S. Menell, University of California at Berkeley School of Law
October 26, 2011

I have long wondered how so many copyright scholars could be so deeply troubled by adding of 20 years to the end of the copyright term in the 1998 Copyright Term Extension Act and yet be so untroubled by the effective loss of rights during the first 20 seconds of a work’s release following Napster’s emergence the following year.  It always struck me that both issues were deserving of serious attention by those who care about progress in the expressive arts.  Given the importance many scholars and advocates placed on the discounting analysis in the Eldred case – showing how little economic incentive comes from adding 20 years to the end of an already long term of protection – it would seem that these same scholars and advocates would be alarmed by the effective diminution of protection 20 seconds after a work is released in the Internet Age.

This incongruity is on full display in Professor John Tehranian’s recent book:  Infringement Nation: Copyright 2.0 and You.  It is difficult to imagine how a scholar purporting to chronicle and analyze the ramifications of the Internet revolution could largely overlook the unauthorized distribution of popular songs, films, and books.  A reader of Infringement Nation who was unfamiliar with the events of the past decade would come to believe that copyright law: (1) exposes anyone who uses e-mail or surfs the Internet to billions of dollars of potential liability for copyright infringement; (2) suffocates expression and creativity; (3) squelches personal development and identity formation; (4) undermines national identity; (5) disrupts spiritual and religious exploration; (6) tramples civil rights; (7) contributes to the spread of HIV and AIDS; and (8) subjects everyone to palpable risk of banishment and “identity execution.”  At the same time, the reader learns little about unauthorized distribution of the most popular and valuable copyrighted works beyond the risk of crushing liability that copyright law imposes on all Internet users.  Infringement Nation provides no insight into the economic determinants of content production and unauthorized distribution, which are central to promoting progress in expressive creativity.

Although the concept of “infringement” raises some definitional questions, 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 Matrix and 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 infringing user-uploaded content of clearly infringing copies of popular sound recordings, films, television shows, and books has seriously disrupted and undermined important creative industries.

The past decade has confirmed why we should be alarmed.  Annual record revenues fell by nearly two-thirds in constant (inflation adjusted) dollars between 1999 and 2010.  Home video product sales (DVD and now Blu-Ray), the largest film industry revenue source, have fallen nearly 40 percent since BitTorrent’s emergence six years ago.  (Some of that decline undoubtedly reflects the availability of authorized streaming sites – such as Netflix and Hulu – but it would appear that illegal downloads and streaming have played a role in this precipitous drop.)  Within 24 hours of release of Dan Brown’s latest novel, “The Lost Symbol,” fans had “shared” more than 100,000 copies on Rapidshare, BitTorrent, and other file-sharing sites.

When both the permissions problem and the piracy problem are recognized, the policy landscape broadens substantially.  The goals and principles of the copyright system – affording authors effective, but relatively narrow, protection for their works as a means of promoting progress in the arts – provide the compass.  As Professor Paul Goldstein has expressed:

The correct cause for advocacy is copyright itself, a system whose genius is to measure each of these goods, one against the other, a system that takes as its balance wheel the need at once to promise authors protection for the product of their labors and to ensure them the freedom to borrow unprotected elements from the works of others.  Copyright is not, to be sure, responsible for all of the cultural wealth we see and hear about us, but it is surely responsible for some, and if copyright imposes so relatively few constraints on users in return, that in my view is enough to make the case for copyright and author’s right as a powerful and empowering force in the service of creativity, culture and ideas in the present century.

The Internet has not altered this powerful insight about human nature and institutions.  Rather it has changed the ecosystem for effectuating these balances.  Copyright’s limiting doctrines have already begun to adapt to new modes of creativity and distribution.  Its enforcement regime, however, has failed in channeling creators and consumers into competitive markets for content.  Such markets must evolve as technology advances.  The digital revolution has disrupted that process.  But that should not mean that we give up or accept destructive piracy “norms” as the best solution.  Rather it should inspire us to work harder to channel creators and consumers into better functioning markets.

Just as a book about the contemporary American political landscape cannot ignore red or blue states and be true to its purported scope, a book about “infringement nation” in the Internet Age cannot ignore file sharing.  By overlooking this critical region, Infringement Nation’s policy prescriptions miss the mark.  Copyright policymakers and jurists need a complete infringement census if they are to take on the challenges of adapting copyright law for the Internet Age.  My fuller analysis can be found in “Infringement Conflation” (forthcoming Stanford Law Review)