Legally Speaking — Reasons for Copyright Infringement

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>

As 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.

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

behavior of participants that viewed the warning messages. The Cautious Infringers were most likely to change their behavior reading copyright messages, whereas the Savvy Infringers were not likely to change. In fact, the study revealed that the Savvy Infringers were “Sceptical about the true impact of illegal access on industries or of the opinion that industries must change, not consumers.”

The Intellectual Property Office also offered considerations when preventing infringement by a Savvy Infringer that a message should note the impact of infringement to an individual, rather than the industry, which would be more effective, as well as the risk to the consumer through computer viruses. The study also stated that messages with “greater legal action and consequences for those who infringe — this is not currently seen as a viable threat but was mentioned by a few as a potential deterrent if enforced more widely” (IPO, 2021, p. 237).

Overall, the study provided insight on the reasons people infringe and the types of online content that is downloaded illegally. In addition, demographics were also included in the study. For instance, social status was a category for those that downloaded online content illegally. The data indicated that upper, middle, and lower class consumers infringed more software, eBooks, and audio books than the working skilled class, working class, and the non-working class. In fact, the working skilled, working, and non-working class illegally downloaded more music, film, sporting events, video games, and digital magazines than the other social classes.

While the study is creating a better understanding of the behavior of consumers infringing on copyrighted works and providing best practices, this does not factor in other authors or creators that infringe on other works. It would be ideal to have similar data that would give us insight on their behaviors and motivations. The numerous copyright lawsuits only describe the plaintiffs and defendants arguments, along with the judges’ remarks without motivations or behavior reasons for infringement.

A couple of recent music copyright issues arose that interestingly suggests that other artists unknowingly infringe on other copyrighted works. For instance, Nick Thorburn from the band Islands released the album Islomania and the song “Carpenter” was actually a cover of a 2014 song by Julie Byrne called “Prism Song.” Thorburn stated that he forgot he had heard the song before, which he listened to through a streaming playlist. After he heard the song on the playlist, he recorded a demo using his phone. Later he listened to his version and then made a studio recording.

Once he realized the issue, he attributed the infringement issue as a mistake. According to Rogers (2021), “He took full responsibility, apologized to Byrne, and noted that she would be receiving 100 percent of the publishing rights for the song.” This is not the only instance of mistaken use of infringement, but it does appear to be a growing trend following the landmark case involving Robin Thicke’s “Blurred Lines” and Marvin Gaye’s “Got to Give it Up,” which Thicke and Pharrell Williams paid $5 million for their infringement case.

Since the Thicke ruling, artists are being more aware of the consequences of infringing, and they are addressing these issues once they are raised. For example, Lorde’s song “Solar Power” was similar to the Primal Scream song “Loaded,” which was brought to the attention of Lorde before “Solar Power” was released. She immediately contacted the leader of Primal Scream, Bobby Gillespie and informed him of the similarities. Fortunately, Lorde received their blessings to move forward. Interestingly, this did not end with Primal Scream. In fact, there is a similarity with the George Michael song “Freedom,” which the George Michael’s estate also gave their blessings.

The idea of seeking out permission after the fact is becoming a common trend in the music industry. Taylor Swift contacted the band Right Said Fred in 2017 before she released the song “Look What You Made Me Do,” because there was similarities to the Right Said Fred song “I’m Too Sexy.” A more recent account is Olivia Rodrigo’s song “Good 4 U” and Paramore’s “Misery Business,” which she gave writing credits to the band.

The technique of giving writers credit on a song is also a growing trend to avoid any legal remedies. For instance, Mark Ronson’s “Uptown Funk” includes song credit to 11 people associated with Gap Band. Furthermore, Animal Collective also received writing credit on Beyoncé’s “Lemonade.”

These are just a few examples of musical artists either unknowingly infringing or being proactive to avoid any copyright infringement lawsuit. Fortunately, the artists mentioned in Rogers’ article avoided lawsuits and financial repercussions, which is attributed to prior agreements between the artists. Such as Rogrigo’s song that George Michael’s estate stated, “George would have been flattered to hear, so on behalf of one great artist to a fellow artist, we wish her every success with the single” (Rogers, 2021). Also Lorde’s case that according to Lorde, Gillespie replied, “You know, these things happen. You caught a vibe that we caught years ago.” After Elvis Costello was made aware of a Rodrigo song similar to his “Pump It Up,” he stated, “It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did.” (Rogers, 2021).

This article examined two types of online infringers, which are those that are Cautions and those that are Savvy, along with those artists that unknowingly and knowingly infringe, but immediately seek resolution before the issue reaches the legal system. However, there are those that are innocent infringers. According to Reese (2007), “Innocent or unknowing copyright infringement occurs when someone engages in infringing activity not knowing that her conduct constitutes infringement” (p. 133).

Innocent infringers may have violated copyright laws due to their lack of knowledge regarding copyrighted works. A common issue for an innocent infringer is that they may not understand the legitimate way to copy works, which there are proper ways to use copyrighted works. About innocent infringers, Reese noted, “Perhaps most commonly when she knowingly copies from another’s work but reasonably believes that her copying is not infringing” (p. 133).

Similar to the knowing infringers, unknowingly or innocent infringers are likely to have an idea that violating copyright laws can have consequences, but their understanding of the complicated copyright laws are limited or non-existence; therefore they will infringe without fully understanding the act. While we are getting a better understanding of the types of works that are frequently infringed and the type of infringer, the ability to deter these acts will continue to be a challenge despite the strengthening of laws and technology to combat infringement.

references

Intellectual Property Office. (March 2021). Online Copyright Infringement Tracker: Latest Wave Overview and Key Findings. Retrieved from https://assets.publishing.service.