One must conclude from recent actions of the recording industry's mouthpiece, the RIAA, that it feels cornered, dangered, and can smell its own death at hand, as pungent and immediate as its own fear-soiled trousers.
In a case reported in the Washington Post recently, the RIAA initially argued that even copying one's own legally purchased music - such as mp3s on a personal computer, or a duplicated CD-R to be played in one's car - constitutes illegal copying. (The Post finesses this argument by its correction, at the top of the article as currently posted at its website, by saying the RIAA claimed only that mp3s in a shared folder are infringing...but as Utah law professor John Tehranian points out, the law as currently written makes no such distinction.) The same article points out the absurdity that Jammie Thomas, who was convicted of sharing songs online, was fined $9,250 per song. Where, exactly, does that number derive? The record industry releases thousands and thousands of CDs each year; even assuming an overall profit, that profit surely comes nowhere near $10,000 per song per person. The penalties are clearly excessive.
The absurdity of the Thomas case might seem exceptional - and so far, in terms of actual settlements, it is - but copyright law generally is wildly out of sync with common belief and practice. Tehranian succinctly sums this up in his article, in which he presents a typical day in the life of a hypothetical law professor. In the course of his day, Professor "John" infringes to the tune of $12 million dollars...merely by doing things that many, if not most, people do everyday.
* downloading e-mails - thereby "illegally" copying their content onto his computer
* distributing copies to his students of an online article summarizing a recent law case
* doodling "an unauthorized derivative of a copyrighted architectural rendering" in the form of a sketch of Frank Gehry's Bilbao Guggenheim
* reading aloud a poem to his class - an unauthorized public performance
* e-mailing copies of photos taken by a friend: even though the friend gave him the copies, copyright in the original remains with his friend
* publicly displaying an "unauthorized" tattoo of a copyrighted cartoon character
* singing "Happy Birthday" in a restaurant - again, unauthorized public performance
* videotaping that birthday celebration - and accidentally capturing an image of a copyrighted painting in the background
* having subscribed to and reading Found magazine...since copyright is automatically granted to the creator of any "work" (very loosely defined), Found could be held to infringe the copyright of those creators...and "John" materially contributes to that by helping fund the zine's endeavors
Tehranian's summary is worth quoting in full (even if my doing so might well fall afoul of "fair use" regulations...an area of law which, Tehranian points out, is highly malleable and provides little guarantee to users that they might not be held liable):
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.... 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.
Even singing along with a song on your car radio (if your windows are open, and anyone else can hear it) might technically constitute "unauthorized public performance" under the strictest reading of the law, Tehranian points out - a reading that, increasingly, the RIAA (to take one example) would like to see enforced.
Clearly, such damages are absurdly out of line with any actual damages sustained by the copyright holders. Equally clearly, if a law theoretically criminalizes everyday activities to such an extent, it is grotesquely out of touch with reality, and needs to be changed.