- Infringement Nation: Copyright 2.0 and You
Intellectual property is no longer an exotic topic for specialized practitioners. There are many books on the market that purport to explain copyright law. But there are few works that explain the historical and philosophical foundations of copyright, and even fewer that are accessible to and readable by non-scholars. Yet because of the very importance of this topic, we must not leave these questions to philosophers or jurisprudence professors. Instead, everyone must understand (and question) these assumptions. John Tehranian's Infringement Nation: Copyright 2.0 and You fills this void in an interesting and readable fashion.
Tehranian, a professor at Chapman University School of Law and founding partner at One LLP, is an expert on intellectual property law. Infringement Nation explains the assumptions behind the foundations of American copyright policy as well as the growing gap between copyright and societal norms. Many of these problems come about because the philosophical foundation of copyright has changed drastically over the years since the Copyright Clause was written into the Constitution in 1787.
Infringement Nation begins with an overview of the history of copyright. Then five chapters follow the individual through the various roles that we all fulfill in the world of copyright, namely infringer, transformer, consumer, creator, and reformer. The first chapter, The Individual as Infringer, provides a demonstration of how our norms fail to correspond to the law. Using a hypothetical professor on a typical day, Tehranian shows how we all have become (unwitting) infringers. In the course of this day, the hypothetical character manages to infringe copyright 83 times, with $4.544 billion in potential damages and the possibility of criminal charges. Not one of the hypothetical actions was done with the intent to violate the law, and none involved peer-to-peer file sharing. This exercise is not intended to scare readers; rather, it points out ways in which copyright law has failed us.
The second chapter, The Individual as Transformer, examines the purpose behind copyright and how it has changed over the years. When the Copyright Clause was included in the Constitution, the goal was "'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'" (p. 19) Yet along the way, this purpose has changed to one of [End Page 337] protection of economic and moral rights for authors. Tehranian believes that this change has caused copyright to fail in its goal of promoting transformative uses of copyrighted works.
The Individual as Consumer discusses how we are able to use (or not able to use) copyrighted materials. (In fact, even some items that are in the public domain are restricted by digital rights management.) Tehranian believes that private rights are increasingly coming under attack. Again, he believes that this involves changes in the purpose of copyright law rather than technological changes in society and has resulted in a decrease in personal use rights. The Individual as Creator examines copyright from the perspective of the author. According to Tehranian, U.S. copyright law has also failed the authors themselves by forming a two-tier system of protection. Sophisticated creators with deep pockets (often large corporations) use the existing copyright law to monopolize and monetize content, while less knowledgeable (or poorer) authors receive less protection in the United States than in many other countries. Tehranian writes that we have thus unwittingly created a social hierarchy that perpetuates the establishment.
The final chapter, The Individual as Reformer, discusses how to change the system in order to align goals with norms. Unlike many copyright reformers, Tehranian is not a fan of the fair use defense, which he believes has damaged copyright and confused consumers. Tehranian's solution is to create a new intermediate liability remedy for transformative use. This remedy would be available for materials that "[draw] upon copyrighted works to create a new work of art imbued with new expressions that criticize or illuminate our values, assess our social institutions...