IS COPYRIGHT INFRINGEMENT IMPOSSIBLE TO AVOID IN TODAY'S
TECHNOLOGICAL ENVIRONMENT by CodeWarriorz Thoughts


Years ago, I pointed out that copyright infringement occurred every time a web page was loaded on a computer other than the one on which it was created. The reason I gave for this was that, given the "point of creation" model of copyright, there is an instant copyright created whenever a unique , original work is created. This article I am writing, is being copyrighted as I create it, since it has not existed before. In fact, if you scan in an
article or a picture, forward e-mails, or do any of a number of every day actions that
most people don't think about twice, you are probably infringing on SOMEONE's
Copyright. Now, under the DMCA, one must have the Registration of Copyright in
order to move forward to seek damages for said infringement, but, if one merely takes the high and mighty position that copyright infringement is wrong per se, then most of us are in fact, daily infringers.

In the past, my observation went without much discussion, but it bothered me that attorneys for example, often print out websites without the permission of the website creator, and nothing is done to them for blatant copyright infringement. So, it was good to find someone else who is making the same points I am with this.

John Tehranian makes just my points in his writings, found in PDF format at:

Tehranian_Infringement_Nation.pdf

From an article in The Registerhttp://www.theregister.co.uk/2007/12/12/copyrights_and_wrongs/

"As University of Utah law professor John Tehranian
points out (pdf), mundane activities like downloading, copying, automatically replay to, or forwarding emails could be read to constitute copyright infringement.
That's right - almost all emails are copyrighted.

Tehranian points out that just copying and replying to 20 emails could lead to $3m dollars in statutory damages. So too are such things as forwarding family photographs or pictures of the company holiday party that you didn't take, singing "I Wish You a Merry Christmas" at the party and videotaping the singing of the song, or posting the latest "Dilbert" comic on your cubicle wall. All create potential civil and criminal infringement liability. Indeed, Tehranian notes that his hypothetical infringer, doing nothing more than the average person does, and not including any peer-to-peer file sharing, could have potential annual statutory civil liability of more than $4.5bn. And, of course, that is just in the United States.

The internet, being a transnational medium, raises the specter of infringement
liability in many countries at the same time."

I would be willing to bet that most attorneys who present themselves as experts in "intellectual property" (I hate that term) are guilty of daily infringing on SOMEONE's copyright, if we use that point of creation standard.

Most folks who create content online don't go around suing people for these alleged copyright infringements, but, I think it is interesting that it is probable that those folks who are going after John Q. Public for alleged infringement, are themselves PROBABLY infringing by making copies of original material which they did not create, and doing so without getting the authorization of the copyright holder
~Code

Let's see if we can get some RIAA bigwig to reply to an e-mail and then sue the pants off of him for copyright infringement.

The PDF from Tehranian in my belief is a "must read". In it, he takes an average person through a day and shows how they could be guilty of massive infringement without once going on a P2P network.

Here is a brief quote to give one the flavor of it...

"At the end of the day, John checks his mailbox, where he finds the latest issue of an artsy hipster rag to which he subscribes. The ’zine, named Found, is a nationally distributed quarterly that collects and catalogues curious notes, drawings, and other items of interest that readers find lying in city streets, public transportation, and other random places.

In short, John has purchased a magazine containing the unauthorized reproduction, distribution, and public display of fifty copyrighted notes and drawings.

His knowing, material contribution to Found’s fifty acts of infringement subjects John to secondary liability in the amount of $7.5 million. 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, barring last minute salvation from the notoriously ambiguous fair use defense, he would be 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."

Warning: in downloading this post you have infringed upon my copyright as the entire page has been copied to your PC.




Please send me $100,000 now




I honestly believe a person's intent has to do with breaking the law. Absence of Malice, complete ignorance (when it seems like normal and/or common action), and the actual intent of simply enjoying yourself with NO harm to others, may excuse a person's behavoir in some cases.
However laws are being written (by megacorperations) which leave no legal way for citizens to pursue everyday happiness when dealing with real world technology.
When congress gave incorperations some of the same rights to conduct business such as private citizens they gave no fairness to the citizens. When wuz the last time a megacorperation spent 90 days in jail?

RIAA v. Thomas has a lot of perfectly bright, well-intentioned people saying some patently ridiculous things. The fact remains, though, that you don't risk any greater risk of prosecution by opening a webpage than you do by viewing a billboard.
In the U.S., no one has ever been found legally culpable of "unauthorized reproduction" independent of proof of unauthorized publication. In the only American court case against a music file downloader, it was determined by a judge (Always insist on a jury trial!) that Ms. Thomas failed to prevent her 12 year-old daughter from assisting a website in providing unauthorized material to its members.
And if you find my wording convoluted and confusing, read the decision itself! Still, it undeniably states that the sole basis for prosecution was the "fact" that the younger Thomas' actions promoted or otherwise aided the website in its distribution of not just those eight songs, but all of the unauthorized material it made available.
Yeah, I know; it's a crock, and believe me, I've been very vocal about it at every opportunity. The fact remains, though, that the law would have to change drastically down to its essence for viewing or listening to unauthorized material on the internet to become illegal.

I'd like to remind Code that the "point of creation" standard predates the availability of the internet in all but a few major American population centers, and NO legislation before or since has made registration requisite to protection...certainly not the DMCA, which makes the circumventing of DRM (or even the creation of anti-DRM ware) illegal, taking special care to plainly state that the legislation has nothing to do with copyright issues in and of themselves.

And be careful, Code, there have been a number of cases prosecuting those who copied and pasted large blocks of type from a website without permission, and in those cases, the websites where those passages appeared were considered "objective third parties" whose testimony was every bit as valid as an actual registration of copyright in determining who the rightful holder of the copyright was. I don't know if it has ever made it into the wording of legislation, but the precedent has been set and survived many challenges: it's not illegal to post a link.

http://www.copyright.gov/legislation/dmca.pdf

http://williampatry.blogspot.com/2007/10/deficit-deposit-requirements-and.html
"“[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a); see also Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1160 (1st Cir.1994) (“[R]egistration of the copyright is a prerequisite to suit under the Copyright Act.” (citation omitted)). This requirement is often described as a jurisdictional one. See, e.g., Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 365 (5th Cir.2004) (“17 U.S.C. § 411(a) sets forth [a] jurisdictional prerequisite....”); Well-Made Toy Mfg. Corp. v. Goffa Int'l Corp., 354 F.3d 112, 115 (2d Cir.2003) (“Th[e] registration requirement is jurisdictional.”); Xoom, Inc. v. Imageline, Inc., 323 F.3d 279, 283 (4th Cir.2003) (“Copyright registration is a jurisdictional prerequisite to bringing an action for infringement under the Copyright Act.”); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir.1990) (“The registration requirement is a jurisdictional prerequisite to an infringement suit.”). In order to complete the registration process, and receive a certificate of copyright registration, a creator must submit to the Copyright Office “a complete copy or phonorecord” of the work for which he seeks registration, often referred to as the “deposit copy.” 17 U.S.C. § 408(b). The Copyright Act defines “copies” as “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Id. § 101"

The above citation is from
http://williampatry.blogspot.com/2007/10/deficit-deposit-requirements-and.html
but if you read the full text of the DMCA, you will find that registration of Copyright with the Copyright Office is a prerequisite to carrying out a suit for copyright infringement under the DMCA. I will cite this later today if I get the chance to get back to this thread.
~Code

And, the point of creation standard, in my understanding, is still the law as far as your having the copyright at the point of creation, it does not however register the copyright. I know because I have registered various copyrights.

Quoting from the verbiage of the DMCA itself...
"The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 3
Registration as a Prerequisite to Suit
The remaining technical amendment relates to the prohibition in both treaties
against conditioning the exercise or enjoyment of rights on the fulfillment of
formalities. Section 411(a) of the Copyright Act requires claims to copyright to be
registered with the Copyright Office before a lawsuit can be initiated by the copyright
owner, but exempts many foreign works in order to comply with existing treaty
obligations under the Berne Convention. Section 102(d) of the DMCA amends section
411(a) by broadening the exemption to cover all foreign works."
From http://www.copyright.gov/legislation/dmca.pdf

And, if you don't believe that registration of copyright is essential to filing a lawsuit against an alleged infringer...
trying suing someone for infringement in the federal court system and see what happens when you advise the court you never registered the copyright.

As always, though, in matters of Copyright Law, I defer to my friend Leflaw...but I believe he will agree with me on this one.

And yes, the "point of creation" standard does predate the internet by many years.
And, yes, you do not have to have registered your copyright to lay claim to it or to have protection about it, but, if you are going to sue for damages with regard to the DMCA, or in most copyright cases, you MUST have registered the copyright.

"...if you are going to sue for damages with regard to the DMCA, or in most copyright cases, you MUST have registered the copyright"
That isn't exactly the case. I hope I'm not being an annoying little s**t by nitpicking at the language here, but there are some absolutely essential facts in the specifics here, and I think this is a valuable discussion.
One may start the process for registration up to sixty days after filing an infringement suit. I had no idea that registration was requisite to legal action, but it is some condolence that is isn't PRErequsite.

One positive thing that this article has achieved is that it led me to read another piece of legislation that while clunky and inelegant, really nurtures creativity and helps protect artists, inventors, programmers, and other creative types from the likes of the RIAA, the MPAA, hackers, and....apparently....CodeWarrior (assuming Code' doesn't fall into one of the other three subcategories).
O.k., so I can't argue against the notion that hackers are creative. I recognize that with the same mixed emotions with which I admit that Adolph Hitler was a hell of a public speaker.
But the DMCA has been another good step in protecting the creative process and ensuring freedom of publication. It reinforced the notion that people have a right to experience any art which the artists have chosen to share with the public by further expressly ensuring that right within the U.S., while doing away with the need of creative types outside the U.S. to register their work with the U.S. government in order to be protected here. Another way in which it lowered the importance of registration was by restating the so-obvious-it's-brilliant "point of creation" standard that was established much earlier.
U.S. Copyright law has always been a friend of the creative, and the DMCA has brought it one step closer to being the perfect friend.

Damn, I should've mentioned Mussolini's public speaking ability instead of Hitler's! After all, his brand of Fascism wouldn't have had any influence without the Anarchists, just as the RIAA et al would be lost without hackers, pirates, and the like. And the RIAA are a lot closer to being Fascist than being Nazi.
Oh, well, too late now...