Infringement Conflation

Stanford Law Review, Forthcoming

UC Berkeley Public Law Research Paper No. 1949492

26 Pages Posted: 27 Oct 2011 Last revised: 19 Aug 2014

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: November 1, 2011

Abstract

Following the most tumultuous decade in copyright history, Professor John Tehranian’s recent book – Infringement Nation: Copyright 2.0 and You – promises a broad-ranging account of the complexities of copyright infringement in the Internet Age. There can be little doubt that copyright infringement has exploded since Napster ushered in Web 2.0 a little more than a decade ago. On the positive side of the ledger, millions of ordinary netizens create, distribute, and share countless new and original user-generated works on a daily basis. There is also little doubt, however, that a massive volume of clearly infringing user-uploaded professional content courses through the Internet.

This essay critically analyzes Professor Tehranian’s selective account of the “infringement nation.” While jammed with historical tidbits, intriguing anecdotes, and illustrations of over-enforcement by copyright owners, Infringement Nation barely mentions the effects of unauthorized distribution of copyrighted works on composers, recording artists, film producers, screenwriters, novelists, or journalists. What little Infringement Nation has to say about Internet piracy centers on the risk of crushing liability that copyright law imposes on file-sharers. This distorted infringement “census” leads to misdirected policy recommendations.

After exposing the limitations of Infringement Nation’s lens, this essay fills in important missing regions from the census – the professional content industries that have been struggling to deal with rampant unauthorized distribution of their works. With this fuller picture of the infringement landscape in mind, the essay closes by exploring the challenge of channeling consumers back into the content marketplace.

Keywords: copyright, infringement, piracy

Suggested Citation

Menell, Peter S., Infringement Conflation (November 1, 2011). Stanford Law Review, Forthcoming; UC Berkeley Public Law Research Paper No. 1949492. Available at SSRN: https://ssrn.com/abstract=1949492 or http://dx.doi.org/10.2139/ssrn.1949492

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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