Copywrong

The description of the virtual impossibility of determining whether or not
a particular work is published is accurate but misleading. It is not
incumbent on the individual to make such a determination. It is incumbent
on the copyright holder to identify the work as copyrighted, and to defend
the copyright by challenging any infringing use. If the copyright holder is
aware that copyright is being infringed and makes no effort to stop it,
then the work enters the public domain (on the theory that the copyright
holder no longer wishes to exercise his exclusive rights). The large
corporations that hold many lucrative copyrights have worked very hard to
advance the notion that it is the responsibility of individuals to avoid
copyright infringement (and many people on the Internet, especially
programmers, have found that attractive and helped promote it), but that is
not and never has been the case.

The scam described only works because of the general ignorance on this
issue — to which I'm afraid many well-meaning people like Mr. Trout
contribute. People in the situation described do indeed have a choice. They
can simply stop whatever it is they're doing, and defy the copyright holder
to sue. Although the copyright holder has the nominal right to sue, the
chance of actually collecting anything by going to court in such
circumstances is nil. In court, the copyright holder would have to make a
showing that the infringer was purposeful, done in full knowledge that the
work was copyrighted by someone else who didn't want it used by others in
that fashion. (Merely claiming or even registering copyright does not
automatically establish the wish of the copyright holder to enforce the
copyright in every possible way, which is why many copyright notices
include elaborate descriptions of what sorts of uses are prohibited, and
which aren't.)

It is, in fact, a perfectly good defense for someone accused of copyright
infringement to claim that he relied in good faith on such a notice, even
though it may have turned out to be inaccurate. Under such circumstances,
he would only be personally liable if he persisted in the infringement
after having been notified of the truth.

The bottom line is that the widespread belief that everyone has to be very
careful about infringing, even unwittingly, on someone else's copyright, or
risk being sued successfully for some huge amount of money — or even
jailed — is simply nonsense, and always has been. Publishing interests
have managed to get the laws changed in their favor during the last century
or so (and especially the last few decades), but when such an issue comes
to court, it's still a question of whether the parties acted in good faith
or not, respectively. Whatever legislators may do, judges and juries
generally do not allow the law to be used for entrapping the innocent, or
for shifting reasonable responsibilities to others who lack the means to
meet them.

The very fact that it is so difficult for any ordinary person to
determine whether or not a particular work is copyrighted works to the
advantage of the defendant in such an action — particularly since many of
the large copyright holders have actually resisted participating in the
obvious solution: Creating a well-known public clearinghouse for such
information, kept up-to-date by the copyright holders themselves. Doesn't
it seem odd, given all the current concern, as well as the fact that the
Internet is so well-suited for such a task, that no such database exists in
popular music, for example? The reason one doesn't is that large corporate
copyright holders have declined to participate in efforts to create one,
because they don't actually want to have to specify which works they
actually hold copyright on.

They prefer to have users think that ANY work
MIGHT be copyrighted, and that they might be sued by some big company if
they unwittingly “violate” the copyright. One of the reasons for this is
that much commercial traffic in information — text, music, software, you
name it — actually involves the reproduction of work that is in the public
domain, where the buyer is actually only paying for the packaging (a
reprint of a Dickens novel, a collection of ragtime music, a shrink-wrap
copy of Linux, etc.). A public database of works that are actually
copyrighted would invite competition with respect to the ones that aren't.
Much better if people are afraid that all of the stuff on the shelves MIGHT
be copyrighted, and that there are stiff penalties for violating such a
copyright, even unwittingly. [James Girard]

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