And Now for Some Copyright!

I know I'm the only member of this blog who cares about copyright, but this is a pretty big story, so I'm gonna talk about it anyway. Attorney General Gonzales recently came out with a few proposals to expand the scope of copyright law. These are all really problematic things, and I could take up the whole front page with why I think they're horrible ideas, but I'll just talk about the one I think is the worst: Gonzales wants to make a new type of copyright crime, something called attempted infringement. This might not sound so bad at first blush, I mean, people can be punished for attempting many other crimes even if those crimes never actually happened, so why not extend that to copyright law?

The reason is that doing so risks killing fair use, the principle that allows people to use copyrighted material for things like parody, scholarship, news reports, thumbnails on the internet, deep linking to internet sites, and other stuff. Copyright is just a policy choice that hopes that extending a type of monopoly to some kinds creativity can incentivize the creative process so that society ends up with more creativity than it otherwise might; fair use is in line with that goal in that it allows people to create very useful and interesting things that they otherwise wouldn't be able to, and that benefit to society outweighs private monopolies on copyrighted works. Fair use is basically the populist counterweight to the otherwise-monopolistic copyright system; it's actually pretty important for democracy because, in addition to allowing news reporting, it lets people talk, write, listen to, and view things in ways that would otherwise be locked down and illegal, and it's essentially the only reason that the internet hasn't been destroyed by copyright law.

Fair use is already a little hampered because copyright law is remarkably unclear and unsettled, with all sorts of opposing decisions having been made and very little reconciliation among them. Add to that the fact that internet law is also extremely unclear, and you get decisions regarding copyrighted material on web sites, linking, thumbnails, etc that differ wildly. Even my copyright professors have said more than a few times that they have no idea what certain results would be because things are just too unclear. This is partially why I find copyright so interesting, but it also means that it's potentially dangerous for people to use copyrighted works in ways they believe are fair use, since they can't really be certain of the outcome.

Gonzales' proposal exacerbates that problem by creating something else potential fair use users have to worry about. With this proposal, not only would you be punished if you've actually infringed on a copyright, you'd also be punished even if you did something that isn't quite infringement but seems to some people like it approaches infringement or indicates that you were probably trying to infringe at some point. Maybe a blogger who quoted a little too much from someone else is sued for copyright infringement and wins on a fair use defense (because news reporting is fair use); that wouldn't preclude the copyright owner from alleging and even winning on attempted infringement, because it might be found that the blogger quoted enough to show intent to infringe. An appeals court recently decided that Google image search thumbnails are not infringing, but would it say something else about whether the search was an attempt to infringe, even if it was not actual infringement? You might not even need to prove infringement at all anymore if you only need to show intent. Could anyone who has ever logged into a filesharing engine be punished as an attempted infringer? Would YouTube be an attempted infringer? Or the iPod? It's not even clear whether attempted infringement would or could allow a fair use defense, which is worrying all by itself.

It's not hard to see why passing this proposal would have a tremendous chilling effect on fair use, then. Fewer people would risk it, and as a result we would have less scholarship, less parody, spottier reporting, and more restrictions on the internet, and both society and American democracy would end up suffering for it.