I have noticed recently while playing around on YouTube and Google Video seeking exam question fodder that many fans of popular movies and TV shows who make mash-up videos of material from the shows post a notice at the beginning or end of their video saying “no copyright infringement intended”. It strikes me that this is actually a really good example of the disjoin between what the law says and what people think the law says. If copyright is basically a strict liability statute, then the intention to infringe is irrelevant. However, the everyday potential infringer doesn’t know this. It’s kind of like when my students tell me that the copyright act says that making copies of digital music for their own personal use is a fair use and is allowed under the copyright act. It’s fair enough that they think this should be the appropriate copyright policy, but it’s obviously not true that this is what the “copyright act says”. Is there any point in having a law that potentially affects things we do everyday that no one understands? I’m sure this is true of many laws, but is the answer here: (a) better public education about what the law says; (b) more lax enforcement of the law – at least with respect to public/consumer type infringers – that this class of potential infringers don’t understand what the law says; or (c) reworking the law so it is more in line with normative expectations?
Jacqui — isn’t a lot of legal language used because, while it may do little or no good, it can’t do any harm? That’s how I read those “no infringement intended” notices. And of course you’re right that not intending an infringement doesn’t make a mashup fair use, but there is a role for equity in all of this, and while there’s plenty to criticize Charlie Nesson for as a litigator, his recognition that the law is utterly at odds with what everyone is doing is an important one. Moreover, in Campbell v. Acuff-Rose Music, Inc.,the Court stated that “courts may also wish to bear in mind that the goals of the copyright law … are not always best served by automatically granting injunctive relief when parodists are found to have gone beyond the bounds of fair use.â€
So, in short, I see no harm in putting a “no infringement intended” notice on a mashup. The upside may be minimal or non-existent, but so what?
And so, I think, those notices may not exactly be evidence of what you claim they are.
I think it’s more trying to convey what a lawyer would phrase as “This is intended as a noncommercial transformative use”.
Whenever I stab someone, I make sure to say “no assault, manslaughter, or murder is intended” first. That makes it all right.
Jacqui — Many people, including Mark Shultz, have done work on this whole question of “copynorms” vs. copyright law:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933656
Personally, I tend to think that efforts to “educate the public” about copyright law, while widespread, are doomed to failure and, potentially, are counter-productive. The better result would be to make copyright law actually make sense in a way that the public could easily understand.
If you buy into what many people (incl., e.g., Jessica Litman) have written about the growing importance of the common person in the scheme of copyright law, it is clear that enforcing a statute drafted and understood primarily by publishing industry specialists is no way to organize the standards of individual liability in this area.
@Nat Gertler – “No offense intended” is a pretty common phrase. It isn’t always sincere, but sometimes it’s meaningful.
This really is an important post.
We would choose (a) and (c). As to (a), we long have felt reliable, unbiased, comprehensive access to copyright education was a problem, so we started a sister site Core Copyright [http://corecopyright.wordpress.com/] as an act of public scholarship.
As to (c), we are writing about 21st century normative copyright expectations as evidence of a frame shift that currently is colliding with the long-embedded frame of “piracy.” An initial peek into this research is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392914
When I read postings like yours, I am reminded of something I learned from Kenny Crews. Here is how the New York Times described the Copyright Act of 1976:
“No firecrackers went off when the compromise bill was cleared Oct. 1, the last day of the Congressional session, and no bells are likely to ring when President Ford signs the measure some time this week. The matter is simply too technical, complicated and cumbersome for anyone but specialists to get very excited.” (emphasis mine)
The copyright regime created in 1976 assumed that if copyright was of concern to you, then you were making a commercial use and you had an army of lawyers at the ready. It was not designed as a system that was intended to apply to everyday individuals. No one can expect the public to comply with a copyright system that has only gotten more technical, cumbersome, and complicated in the last 30+ years.
“No copyright infringement intended” is an admission that copyright infringement, at the least, could be taking place. It is like parking illegally and putting on your four way flashers.
As for your options, in Canada we have an ironic situation. We pay a tariff of $0.29 per blank CD, which money goes to a collective, which holds it for an astonishingly long time (how much they collect is regulated, what the collective does with it is left unregulated), and then gives it to music and sound recording rights holders. It is legal in Canada to copy a sound recording for personal use.
However, Canadians do not know about the tariff, and do not know that they can copy legally. So they either copy, thinking they are breaking the law when they are not, or pay iTunes, and pay for their recordings twice.
Merry Christmas to all.
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