The Right Term is Copyright Infringement

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Tim O'Reilly
Dec. 13, 2002 11:28 AM
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One of the readers of my article, Piracy is Progressive Taxation sent me an email pointer to a great article on Phil Greenspun's site, which summarizes two legal cases in which copyright holders tried to equate copyright infringement with theft. My favorite bit was the quote from Supreme Court Justice Harry Blackmun back in 1985, in Dowling v. the United States":
    It follows that interference with copyright does not easily equate with theft, conversion or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "Anyone who violates any of the exclusive rights of the copyright owner," that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, "is an infringer of the copyright."
In short, any time someone uses the term "piracy" or "theft" in the context of online file sharing, please remind them to use the correct legal term: "copyright infringement."

And that of course is the crux of today's issue. Just what are the boundaries of fair use? Someone has just bought a CD. Clearly, it's not right for them to manufacture and sell copies of the work. But it's clearly legitimate to copy it to another device (such as a tape, or a computer) for purposes of device-shifting. It's also legitimate to loan it to a friend. Where is the boundary between loaning it to a friend, who makes a copy so he or she can listen to it on another device, and copyright infringement? Is it OK if the person deletes the copy after they listen to it, and before they give it back? What if they just leave it on their hard disk and never listen to it again. What if they delete it but leave it in their computer's trash bin (so they still really have a copy)? Now imagine a CD that is commercially unavailable. Under the first sale doctrine, used works are still available, and all of the above can happen with absolutely no compensation to the artist. I could go on and on, creating more shades of grey.

We're in a period of great legal uncertainty, brought on by changes in technology. There was a time when it wasn't clear that it was legal to broadcast music over the radio; that was solved by compulsory licensing. Similarly, internet file sharing raises complex problems that we, as a society need to come to grips with.

Existing rights holders are lobbying for one solution (strong digital rights management, and criminalization of many activities that were formerly considered fair use. Others (like myself) are arguing for policies that will expand the market.

Once there are legitimate alternatives, I will be the first to urge everyone to use them, and to eschew infringing copies. But I think it's the height of foolishness to try to criminalize your customer rather than giving her what she wants.

Tim O'Reilly is the founder and CEO of O’Reilly Media Inc. Considered by many to be the best computer book publisher in the world, O'Reilly Media also hosts conferences on technology topics, including the O'Reilly Open Source Convention, Strata: The Business of Data, the Velocity Conference on Web Performance and Operations, and many others. Tim's blog, the O'Reilly Radar "watches the alpha geeks" to determine emerging technology trends, and serves as a platform for advocacy about issues of importance to the technical community. Tim is also a partner at O'Reilly AlphaTech Ventures, O'Reilly's early stage venture firm, and is on the board of Safari Books Online, PeerJ, Code for America, and Maker Media, which was recently spun out from O'Reilly Media. Maker Media's Maker Faire has been compared to the West Coast Computer Faire, which launched the personal computer revolution.

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