LEGAL ISSUES Section Editors: Bruce Strauch (Retired, The Citadel) <bruce.strauch@gmail.com> Jack Montgomery (Western Kentucky University) <jack.montgomery@wku.edu>
Legally Speaking — Reasons for Copyright Infringement Column Editor: Anthony Paganelli (Western Kentucky University) <Anthony.Paganelli@wku.edu>
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s many in the United States took time to remember the events of September 11, 2001, an interesting clickbait headline stated the most infringed photograph was the iconic 9/11 photo of the three firemen raising the American Flag near the debris of the Twin Towers. I do not typically go for these type of clickbait headlines, but it made me wonder how and why copyrighted works are frequently infringed. According to the U.S. Copyright Office, “copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” This appears simple enough that if you want to use a copyrighted work you need to get the permission of the copyright owner. Yet, this simple definition has caused numerous lawsuits and involved millions of dollars, because copyrighted works continue to be infringed, especially with easily accessible content available online. Copyright infringement is a major concern for artists, authors, and publishers, which requires numerous and expensive resources to prevent and seek remedies for infringed works. While the United Kingdom’s Intellectual Property Office (2021) noted a slight decline of online infringement incidents from their recent quantitative and qualitative study from the previous four years at 23%. There is still cause for concern based on the knowledge of why people violate copyright laws, which the Intellectual Property Office began to study online infringement in 2012. The Online Copyright Infringement Tracker study by the Intellectual Property Office (2021) examined online copyright infringement issues in music, film, television, live sports, video games, software, eBooks, digital magazines, audiobooks, and digital visual images. The summary of the study noted, “The main drivers for online consumption were cost, the choice available and the convenience of being able to consume content whenever they want” (IPO, 2021, p. 1), which gives a beginning look as to why people infringe on copyrighted works. In other words, the availability of online copyrighted works can cost less and are easily accessible. Due to Covid-19, the study did account for some reasons the percentage had declined in some categories, such as live sports streaming. Since numerous sporting events cancelled during the Covid-19 shutdowns, there was a lack of available online content. In addition, Covid-19 was addressed as a part of the research in the qualitative portion; participants mentioned that forms of online entertainment content were important to their mental health during the periods of shutdowns.
30 Against the Grain / November 2021
Of the categories examined, music was a major category for copyright infringement, which participants had utilized various online platforms to access streaming music. The categorized platforms on which the participants accessed music were classified as either legal, illegal, or other. The main forms of illegal downloads included, “Downloading from sites such as YouTube using an online converter or software, app or browser extension; receiving a link to download music made available by someone else; receiving the file(s) directly from someone else; a file sharing or peer to peer service where links to download files are typically made available; and a file hosting website or cyberblocker.” Only a small percentage accessed streaming services illegally through the use of “a file hosting website or cyberblocker (MediaFire, Reaidgator, etc).” (IPO, 2021, p. 59). The music category also mentioned an ‘unknown’ option, which was created “to serve as a catch-all for those who were unsure of the exact source” (IPO, 2021, p. 59). This indicated that there were 12% of the participants that download music without understanding that they may or may not be infringing on copyrighted works. For instance, one respondent stated, “I’m not sure about their legality anymore and I am wary of doing something online that I should not do. I seldom see any clear guidance as to whether or not it is acceptable to use such sites so I prefer to err on the side of caution” (IPO, 2021, p. 74). Despite a majority of participants (59%) that utilized a subscription service or paid for online music, there were a small percentage of participants that illegally downloaded music intentionally. While music is one category, the other categories that were examined indicated several participants that either were not aware they infringed or they intentionally infringed. The study indicated the driving factors of infringement were costs, “the availability and broad range of content accessible via illegal sources which often offer people more options than legal methods, and the ease of access of illegal methods meaning that there are relatively few barriers to use” (IPO, 2021, p. 235). The study considered two types of consumers that infringed on copyrighted works via online. The types were Cautious Infringers and Savvy Infringers. The Cautions Infringers are “those who worry about infringing the law and the risks of illegal activity.” The Savvy Infringers are “those who are more tech savvy and knowingly access content illegally without much concern over the related dangers or consequences” (IPO, 2021, p. 237). Because most copyrighted works provide messages warning the consumer about the impact of infringement, a communications testing was also conducted during the study that noted the
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