Copyright Infringement Essay

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Copyright infringement is the violation of copyright law through the illegal use of protected material. This includes both the reproduction of that material and the creation of derivative works from it. In the case of media (movies, music, books, software, et cetera), reproduction is also called piracy—a term that is sometimes contested, but has in fact been used this way with reference to books and documents since at least the beginning of the 17th century, longer than copyright law itself has existed. One of the controversies surrounding copyright has always been that infringement is not exactly theft; while it may impact the copyright owner’s profits (as in bootleg DVDs), the law does not require that it do so. And while it may bring to the infringer profits reaped from someone else’s property, in the case of derivative works the labor and intellectual contribution of the infringer is still involved—and, again, profit is not necessary to constitute an infringement. Although copyrights can be filed, material is copyrighted regardless of whether a filing was made; the filing is simply helpful in the event of a court case, to provide proof of the validity of the rights-owner’s claim.

Enforcing a copyright claim begins with a cease and desist letter, which in many cases is sufficient, because of the fear of legal reprisals or the infringer’s previous misunderstanding of the relevant law. If this proves insufficient, the rights-holder can then file a lawsuit, and will often seek a preliminary injunction, which prevents the infringer from continuing the alleged infringement until the trial has completed. This will nearly always be done in cases that the plaintiff expects to be settled out of court, because of the additional hassle for the defendant. If the trial is resolved in the plaintiff ’s favor, he is entitled to a permanent injunction against the defendant’s further infringement, and/or monetary damages, depending on the circumstances of the infringement.

The Doctrine Of Fair Use

The doctrine of fair use is a concept in American copyright law that permits certain uses of copyrighted material without requiring permission from the copyright owner, even over the owner’s objections. Similar doctrines obtain in the copyright laws of other countries.

There are four factors used to determine if fair use applies, which the Copyright Act of 1976 identifies as, first of all, the purpose or character of the use, including whether such use is of commercial nature or for nonprofit educational purposes. This factor considers, for instance, whether the use of the copyrighted material is merely derivative (not protected under fair use) or transformative (protected). Satire and parody are protected instances of fair use, in theory: in practice it’s important to remember that the copyrighted material must be necessary to the parody. Inserting scenes from other movies into your own movie is more likely to be derivative than transformative—and even if the court rules in favor of trans formativeness, the legal costs to see that decision through are prohibitive.

Not every educational use is fair use, which stands to reason when one considers the amount of educational material that is copyrighted; if it were permissible to ignore copyright simply because one’s use is educational and nonprofit, schools would Xerox their textbooks rather than purchase multiple copies of them, which in turn would lead to textbook publishing being too unprofitable for the industry to persist, a classic (or textbook) example of the process by which copyright infringement can have consequences beyond the impact on a single rights-holder.

The second factor is the nature of the copyrighted work. This expressly does not mean that the extent of protection from copyright infringement is proportionate to the artistic merit of the work. The type of work can be a factor, though. It is in this second factor that the “idea-expression dichotomy” comes into play: facts and ideas cannot be copyrighted. Contrary to what many people think, for instance, you cannot copyright an idea for a movie or novel—you can only copyright the expression of that idea, i.e., the screenplay (and finished film), the novel, and the distinctive characters involved. Even in the case of the characters, trademark is much stronger protection than copyright, which is why major properties like Indiana Jones are trademarked. The name and likeness can be trademarked; every work in which they appear can be copyrighted; but the idea of an archaeology professor having serial-inspired adventures on major digs is fair game for anyone. Likewise, though you can copyright your memoir about your life with your ex-spouse, you cannot prevent her from writing her own book about those events.

Another wrinkle here is the fact that although inclusion of a patentable idea in a copyrighted work does not constitute a patent claim, it does prevent anyone else from making a patent claim on the idea, regardless of whether the copyrighted work is the source of the claim. The famous example of this, well-known in discussions of intellectual property law, is Arthur C. Clarke’s description of the idea of geosynchronous communications satellites, which prevented Bell Labs from patenting such satellites they developed in-house. The functionality doctrine likewise prevents patentable ideas from being protected by trademark alone. The fact that we have had to bring up both trademark law and patent claims in a discussion of copyright fair use hints at some of the problems legal reformers have with the body of IP law as it now stands; the difference in protections offered to an idea in a copyrighted work and an idea in a patent claim depends essentially on the paperwork the rights-holder filled out.

As mentioned previously, work is copyrighted at the moment of creation, and the courts have ruled that copyrighted work is treated equally whether it is published or not. An unexpected wrinkle of this, one that may be the object of concern in the 21st century as privacy concerns become prominent, is that fair use applies equally to unpublished work as well, which in a bogeyman slippery slope scenario provides a little brother with the legal right to publish excerpts of his sister’s diary, provided his parody is sufficiently transformative.

Another factor is the amount and substantiality of the portion of the copyrighted work used. Both words are important here. Since 1991’s Grand Upright Music v. Warner Bros Records, use of song samples in music do not constitute fair use if the sample is long enough to be recognizable. There is a commonly held belief that up to 300 words of a written work can be quoted and constitute fair use; there is no legal basis for this belief. Book reviews may not often provide excerpts longer than that, but that is as much because of space concerns—while term papers may well quote more than that, and theses will almost certainly do so, and both of these instances are commonly considered fair use.

The last factor is the effect of the use upon the potential market for or value of the copyrighted work. This includes, but is not limited to, the impact of the usage on the rights-owner’s profits. Giving away bootlegged copies of a DVD has a clear impact on the rights-owner’s profits, for instance. A MAD Magazine parody of that movie that persuades the reader that the movie isn’t worth watching—or a review that spoils the ending—has just as much impact but is almost certainly protected as fair use. Another common misconception is that any reproduction of a portion of a copyrighted work is fair use if the source is credited, for which there is no basis in either the letter or the spirit of the law.

Though many of our examples may seem trivial, the significance of the fair use doctrine extends beyond its interest in upholding First Amendment freedoms of speech; a 2007 study by the Computer and Communications Industry found that one-sixth of the American gross domestic product was generated by fair use (search engines, for instance, depend on fair use protections).


The word bootlegging can be hard to nail down, and in its broadest sense simply means the creation of a recording not authorized by the owner of the pertinent rights. This can include illegal copies of albums, movies, and software, and in the 21st century the term “bootleg” has been used, especially in Europe, to refer to bastard pop music, a form of computer-manipulated music in which elements of multiple songs are combined into a new song that retains the familiarity of its source material. (The classic bastard pop formula is A+B: the vocals of one song with the music of another.) But typically, especially in the United States, bootlegging is understood to refer to the recording of concerts, and the subsequent distribution of those recordings.

Though it is possible to buy such recordings, there is a long history—going back to the early days of blues, and especially strong since the advent of touring rock bands—of not-for-profit behavior among bootleggers. Despite the high cost of bootlegging in earlier decades, when recording equipment was costlier and bulkier, the resulting tapes were typically only traded for other tapes, or made available for the cost of reproduction. Though this does not constitute fair use and does not make the copyright any less infringed, it did have the desired effect: because little money was changing hands, record labels had little reason to go after bootleggers after the fact, and in such cases when they did decided to be bothered by the practice, their efforts were confined mostly to the prevention of such recording. Some bands, most famously the Grateful Dead, embraced bootlegging and encouraged taping of their concerts. While the band is not always the rights-holder, this still makes the matter more difficult to pursue in court.

The Digital Millennium Copyright Act

The ambitiously named Digital Millennium Copyright Act was passed unanimously by the Senate and signed into law by President Clinton in October of 1998. Principally, the DMCA updated the language of copyright law to reflect the existence of the internet and digital media, and implemented the two treaties signed by members of the World Intellectual Property Organization in 1996. It explicitly extended the reach of copyright in order to protected copyrighted material from being illegally reproduced electronically—such as through the online sharing of mp3s—and limited the liability of internet service providers. If you put a copy of the new Indiana Jones movie on your Web site, you are the one in trouble—not the cable company through which you connect to the internet, or the company you rent your online data storage from.

An area the courts are undecided on is the legality and liability of linking to copyright-infringing material. While it has not explicitly been found legal, neither has anyone yet been found liable for it yet, except in such cases when the linker was trying to get around an injunction by linking to material they had been forced to remove from their own Web site.


  1. Ben Depoorter and Francesco Parisi, “Fair Use and Copyright Protection: A Price Theory Explanation,” International Review of Law and Economics (v.21/4, 2002);
  2. Wendy J. Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the ‘Betamax’ Case and Its Predecessors,” Columbia Law Review (v.82/8, 1982);
  3. Pamela Samuelson, “Copyright’s fair use doctrine and digital data,” Publishing Research Quarterly (v.11/1, 1995);
  4. Rosenblatt, Digital Rights Management: Business and Technology (M&T Books, 2001);
  5. Clinton Heylin, Bootleg! The Rise & Fall of the Secret Recording Industry (Omnibus Press, 2004).

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