Is it too much to hope for, not that people agree on what is reasonable, but that they use reasonableness as a criterion for decision making? At moments, I fear that the answer is in the affirmative when the issue is copyright, specifically, on issues of whether an act constitutes a copyright infringement.
This area of the law is characterized by costly lawsuits, threats of costly lawsuits, and marked deadweight loss. Companies, big and small, sue each other over allegations of first-hand as well as secondary infringement. As copyright is literally the right to make copies (as well as to distribute, prepare derivative works, publicly perform, and publicly display), it is not surprisingly that many lawsuits revolve around the issue of whether an act of copying constitutes violation of copyright.
This contentious matter has resulted in what seems to me, an non-pedigreed observer, an unhealthy obsession on restricting copying. Instead, I’d like to propose another criterion, one that seems eminently more reasonable to me (again, a non JD degree holder), for determining whether an infringement to copyright has occurred. The criterion I have in mind is simultaneous use — that is, if an unauthorized act allows for more persons to simultaneously use a work than is originally possible, then this act is an infringement on the copyright owner’s exclusive rights. Otherwise, it’s not.
While this is undoubtedly a naive proposal where a cautionary “the devil is in the details” applies, I’d like to run down a list of problems that a proposal of this kind would solve. Two that come to mind immediately are the oft-litigated issues of time- and space-shifting. Time-shifting came to the attention of (expensive lawyers and judges in) our legal system with the Sony Corp. of America v. Universal City Studios case. The issue at hand is whether by providing the means for consumers to record shows for later viewing (essentially a precursor of the VCR), Sony bears secondary liability for infringing on on Universal Studios copyright. After a nail-biting reversal of fortune, the Supreme Court eventually decided that in fact such time-shifting in the viewing of copyrighted materials did not constitute a copyright violation.
Nonetheless the same points of law continue to be litigated in multiple cases, in part because Digital Millennium Copyright Act that was passed subsequent to the Sony decision modified the law. Under the proposed criterion of looking at simultaneous use instead of focusing on the act of copying, I (not a lawyer) believe such a case should be straightforward — as the recording substitutes for the original rather than supplements it, it does not expand the use of the copyright materials to any more persons than originally possible. As such, such time-shifting would be legal.
The same argument applies to cases of space-shifting, the most recent example of which is Amazon’s announcement that its users can now upload all of their electronic materials, including copyrighted works, onto Amazon Cloud Drive. Although Amazon cloud has passed muster with the copyright authorities so far, the issue remains contentious. Fear of violating copyright has kept libraries from digitizing their collections and stop consumers from lending their e-books as well as moving their legally purchased copy of a book across different platforms. If we decide on the basis of simultaneous use instead of mechanical act of copying, then this issue is, to my mind, clear. If space-shifting allows for more people simultaneously access the work, then this is an infringement on copyright. For example, if I copy an e-book to give to a friend while retaining a copy for myself, then I have infringed the author of the e-book’s copyright because now both I and my friend can read the book at the same time. On the other hand, if I no longer have access to the e-book, then copying for my friend is copyright-kosher.
I don’t want to give the impression that the criterion for simultaneous use necessarily favors consumers and distributors of copyright content over publishers and copyright holders. For instance, I don’t agree that “Kindle Device License Limits are Stupid” — in fact, I’m surprised that Amazon allows six persons to simultaneously read a work that was purchased for a price of one. Although I don’t think such a capability is profit-maximizing if it costs 6 times as much as a one-use-at-a-time version, I would certainly accept that it should cost more — that is, simultaneous viewing should be allowed only with the permission of the copyright holder who is compensated for such an extension. I believe such a shifting of focus from the act of copying to its consequence — specifically whether the copying allows for more simultaneous uses of the copyrighted materials — can be both profitable for publishers and good for consumers. Instead of expending resources on lawsuits, publishers can charge more for expanded use — something much more justifiable and arguably lucrative. In turn, consumers should find their choice set enhanced, publishers more reasonable, and thus become more respectful of copyright.