Copyright 2.0

Among the titles in the latest New Book List of the Brooklyn Law School Library is Infringement Nation: Copyright 2.0 and You (Call #KF2994 .T44 2011) by John Tehranian, a book written 300 years after enactment the first copyright act, the Statute of Anne also called “An Act for the Encouragement of Learning”. Tracing the history of copyright law and examining its impact on the lives of ordinary individuals in the twenty-first century, the book assesses the impact of copyright law on ordinary members of society and uses its five chapters on different copyright-related contexts – the individual as an infringer of copyrighted works, as a transformer of copyrighted works, as a pure user of copyrighted works, as a creator of copyrighted works and as a reformer of copyright law – to chart the changing contours of our copyright regime and weigh its vitality in the digital age.

Drawing on his own experiences as an attorney representing prominent Hollywood, publishing, new media and technology clients in high-profile copyright, trademark, patent, right of publicity, defamation and First Amendment litigation, the author questions some of our most basic assumptions about copyright law by highlighting the shocking amount of infringement liability that an average person commits in a single day. The 188 page book is based on Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537 (2007), a short 14 page article that traces the liability that a hypothetical law professor named "John" unwittingly incurs over the course of a single day engaging in ordinary behavior like singing and taking photographs that constitute copyright infringement. The imaginary professor is shown to be liable for up to $12.45 million in civil damages, as well as criminal charges, even without the use of file-sharing networks. Copyright law now affects us all as America has become a nation of copyright infringers where the average citizen violates copyright law on a daily basis. Advances in technology not only provide ordinary individuals with access to their own home printing press in their computers but also allow copyright holders to detect and enforce acts of infringement.

Both the article and the book show that there is a gap between copyright law and copyright norms. The author argues for a reexamination of our current copyright regime that threatens to make criminals of us all. His proposed copyright reforms fall into three broad categories. The first is the restoration of balance between users and creators by a series of reforms such as penalizing rightsholders who make false representations to effect the takedown of allegedly infringing content online; providing defendants with the ability to recover attorney fees; and providing defense mitigation mechanisms for innocent infringement. The second is a repeal of the registration requirement under Sec. 412 of the Copyright Act for recovery of attorney fees to help unsophisticated creators enforce their rights fully along with a cap on the amount of statutory damages with a realistic multiplier of actual damages to reduce the in terrorem effect of modern copyright litigation. The most radical proposal is the adoption of an intermediate liability proposal to encourage transformative activity, advance freedom of speech, and promote artistic innovation. Infringement Nation makes a compelling case for reforming existing doctrine and the development of a copyright 2.0 and would make an excellent addition to the reading list of any course on copyright law as it will help students understand the fundamentals of intellectual property.