Redefining the Intended Copyright Infringer

The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals August 2017 Redefining the Intended Copyright Infringer Yvette Joy Liebesman Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Intellectual Property Law Commons Recommended Citation Liebesman, Yvette Joy (2017) "Redefining the Intended Copyright Infringer," Akron Law Review: Vol. 50 : Iss. 4 , Article 4. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol50/iss4/4 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Liebesman: Redefining the Intended Copyright Infringer REDEFINING THE INTENDED COPYRIGHT INFRINGER Yvette Joy Liebesman* I. II. Introduction ....................................................................... 766 Historical Infringers, Innocent Infringers, and NonInfringers ........................................................................... 771 A. Historical Infringers .................................................... 771 1. Artistic Appropriation............................................ 771 2. Unauthorized Mass Reproductions ........................ 774 3. Not Worth the Effort: Bad Unlawful Copies for Personal Use .......................................................... 775 B. Historical Innocent Infringers ..................................... 776 1. Consequences of Notice Failure at the Enactment of the 1976 Act .................................... 777 2. “Innocent” Individuals ........................................... 778 3. “Innocent” Ongoing Concerns............................... 779 C. Historical Non-Infringers ............................................ 781 1. General Economic Incentive Theories of IP Protection ............................................................... 781 2. Commercialization as the Dividing Line for Protection Prior to 1978 ......................................... 783 3. Private Performance Non-Infringers ..................... 785 4. Unprotected Works and Legal Copying ................ 787 5. The Non-Commercial Elements of Fair Use ......... 790 6. Beyond Copyright: Noncommercial Patent & * Professor of Law, Saint Louis University School of Law. The author wishes to thank participants at the 6th Annual Internet Law Works-in-Progress Conference held at New York Law School, the University of Akron School of Law’s Center for Intellectual Property Law & Technology’s 3rd Annual David and Ann Brennan IP Scholars Forum, and the comments from workshops at Michigan State University Law School and Washington University in Saint Louis School of Law. She is also grateful for comments and suggestions from James Grimmelmann, Lucas Osborn, Ryan Holte, Ryan Vacca, Guy Rubb, and Jason Mazzonne. She wishes to thank Rebecca Schreiner, Editor-in-Chief of the Akron Law Review, for the personal attention she gave to this article during the editing process. Finally, the author is grateful to her faculty fellow, Rachel Jag, for her invaluable assistance, and always for the love and support of David Henderson, Erin, Hugo, and Oreo (the latter three are responsible for any and all errors). 765 Published by IdeaExchange@UAkron, 2017 1 Akron Law Review, Vol. 50 [2017], Iss. 4, Art. 4 766 III. IV. V. AKRON LAW REVIEW [50:765 Trademark Exemptions.......................................... 792 Capturing Intended and Unintended Infringers ................. 796 A. Newly Captured Infringers ......................................... 796 1. Small-Scale Commercial Infringers ...................... 797 2. Noncommercial Personal Copying ........................ 798 3. Personal Infringers ................................................. 803 B. Limiting Liability Bases to Avoid Unintended Consequences .............................................................. 805 “One Size Fits All” Misfitted Statutory Damages ............. 808 A. The Current System of Undifferentiated Damages ..... 808 B. Tiered Damages and Class Actions ............................ 810 Final Thoughts ................................................................... 812 I. INTRODUCTION In the mid-1970s, Paul Edmond Dowling and William Samuel Theaker ran an “extensive bootleg record operation.” 1 The two men made unauthorized “phonorecords of unreleased [Elvis] Presley recordings. . . [using] material from a variety of sources, including studio outtakes, acetates, soundtracks from Presley motion pictures, and tapes of Presley concerts and television appearances.” 2 Dowling was a huge Elvis Presley fan, so he “handled the ‘artistic’ end of the operation, contributing his knowledge of the Presley subculture, seeking out and selecting the musical material, designing the covers and labels, and writing the liner notes.” 3 Theaker, who lived in Los Angeles, handled the logistics of the operation. He “had some familiarity with the music industry, took care of the business end, arranging for the record pressings, distributing catalogs, and filling orders.” 4 In the pre-digital era, their bootlegging was difficult work that required access to expensive equipment and a distribution network. Dowling and Theaker’s operation required them to contract with a record-pressing company—first in Burbank, California, and later in Los 1. Dowling v. U.S., 473 U.S. 207, 209 (1985). The Court defined a “bootleg phonograph” as “one which contains an unauthorized copy of a commercially available unreleased performance. . . . Though the terms frequently are used interchangeably, a ‘bootleg’ record is not the same as a ‘pirated’ one, the latter being an unauthorized copy of a performance already commercially available.” Id. at 209, fn 2. 2. Id. at 210. 3. Id. at 210-11 (noting that Dowling was “an avid collector of Presley recordings.”). 4. Id. http://ideaexchange.uakron.edu/akronlawreview/vol50/iss4/4 2 Liebesman: Redefining the Intended Copyright Infringer 2016] REDEFINING THE INTENDED COPYRIGHT INFRINGER 767 Angeles and Miami, Florida. 5 In addition to the operation being quite labor-intensive for the infringers, discovering infringers was equally difficult—more difficult than merely doing a Google search, finding infringing works on Youtube, or obtaining the Internet Service Provider6 addresses of people who have performed unauthorized downloads from Napster. 7 For Theaker and Dowling, it was a large operation that still required a two-year FBI investigation to gather enough evidence to support an infringement action, and even then, the bootleggers were able to evade authorities for several years b (...truncated)