Say you come across a book review in The New York Times that your friend must read, and you copy and paste it into an email. No problem, right?
“It’s so easy to copy and send,” says lawyer Joseph Petersen, a partner in the intellectual property department of New York City’s Kilpatrick Townsend & Stockton. “But if that article is behind a pay wall, for example, that’s infringement.”
Most of us don’t think twice about it, either. “The apprehensive consumer is the exception to the rule,” Petersen agrees. “What I would say to them is sure, be appropriately concerned. Copyright law is a strict liability offense, but that’s not to say that there are no defenses, like fair use, for example.”
George Graff, an intellectual property lawyer with New York City’s Dispute Resolution Service, offers this advice: Pay attention to all facets of the content you intend to share.
“A very common sort of everyday infringement I see is that when someone uploads content—I’m speaking of YouTube in particular—and it’s not so much what’s occurring on screen as the copyrighted music that is usually playing in the background.”
Both attorneys agree that while the “Internet police” generally are not tracking down infringers, consumers shouldn’t be quick to distribute content that doesn’t belong to them just because they can. There is a potential for big-time damages.
“You could theoretically get into a lot of trouble because statutory damages for copyright infringement, if it is found to be willful, can be as much as $150,000 per infringed work,” says Kirkland & Ellis intellectual property litigation lawyer Dale Cendali. “As a practical matter, though, often the concern is stopping the infringement and informing people that this is a violation and trying to prevent it from happening again.”
Uploading copyrighted content is one thing, but illegal downloads have forced a tide change in standard industry business models.
“You can’t sue every kid for stealing one song,” Graff says. “So instead, business models now are directed toward streaming or selling. iTunes led the pack in selling music. Just let the people buy the one song they want instead of the whole album. … Now the Spotifys and the Netflixes of the world wield great economic power.”
Graff says the software industry is getting into the game, too.
“Microsoft is essentially converting from a stand-alone product to a subscription-based product,” he says. “For $100 a year, you get five copies of Office, the latest version constantly kept up to date on all your devices. This is a way to sell software that strongly discourages pirating because it renders a pirated copy obsolete quickly.”
The bigger issues
There are bigger issues at stake, too. “Consider the goal with copyright law,” Petersen says. “Not only does it rightfully reward the authors of content, the very purpose of copyright law is to continually promote the progress of arts and sciences.”
Here’s Dale Cendali’s pre-click checklist:
- Are you posting something that you yourself created or is it somebody else’s work?
- Do you have permission to use it?
- Are you using it in a way—as in a parody or to make comment—that could be excused by fair use?
- If it becomes well-known, will you have any concerns?
Graff’s final tip? “If you do try streaming services, like Netflix, which I myself enjoy, you must watch The West Wing in its entirety,” he says. “It’s fantastic.”