Matthew Sag & Mark Schultz have offered a comment on John Tehranian’s “Infringement Nation”.
"John Tehranian’s recent Utah Law Review Essay, Infringement Nation, tells a riveting story about copyright law and the widening gap between law and norms. Like Charles Marlow’s journey into the Congo River, Tehranian has given us a transporting narrative of copyright’s potential despotic application to the life of an “ordinary law professor” named John. At the end of John’s journey down the copyright river, Tehranian asks us to “imagine a world where every act currently deemed infringing under the law were actually prosecuted.”
One can almost hear Kurtz’ whispered cry, “The horror! The horror!”
Tehranian argues that “on any given day, … even the most law-abiding American engages in thousands of actions that likely constitute copyright infringement.” Tehranian makes his case with an imaginative list of seeming benign “infringing” acts and concludes that “if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, [John] would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year.” (emphasis added)
Without any disrespect to Tehranian, we take issue with his argument and almost all of his analysis. To begin with, many of his examples clearly do not qualify as copyright infringement, others are marginal cases at best...
The real problem with copyright law today is not so much the tyranny of the law as eventually applied, but rather the tyranny of uncertainty as to how the law will be applied. This uncertainty is the product of factors including, the opaque structure of the Copyright Act, the complicated and fact specific nature of the fair use doctrine and defenses such as implied licensing. It is easy and rhetorically expedient to construct a dystopian scenario of copyright gone wild, but this kind of exaggeration does little to address public confusion about the law and only emboldens copyright maximalists by lending credence to their most grandiose claims.
What kind of copyright debate do we want to have? The “Orange Alert” strategy employed by too many copyright commentators simply produces a clash between irreconcilable extremes: “information wants to be free” versus “sole and despotic dominion.”
We continue to hope for something more."
A worthy response which should be read in full.