Since the introduction of the VCR, lawmakers and courts have been caught up in a "copyright panic," or a fearful reaction towards new technology that enables the exploitation of copyrights, according to UB Law School associate professor Mark Bartholomew.
Copyrighted material is a large part of people's lives as well as the country's economy. It is ingrained into a great deal of the leisure activities, and American cultural products are increasingly worth more money, Bartholomew said.
However, the courts have been making it harder to use this material.
"Many people in the legal community feel like over the last few years, courts may have gone a little too far and expanded copyright laws too much," Bartholomew said. "If we expand copyright protection, we should do it for right reasons, not because we're scared of new technology."
Bartholomew co-authored an article about copyright panic and ensuing stricter copyright laws with John Tehranian, associate professor at the University of Utah S.J. Quinney College of Law that was published in the current issue of Berkeley Technology Law Journal.
The article focuses on secondary copyright infringement. This law has been expanded to place responsibility on manufacturers that provide technology that allows people to exploit copyrights. According to Bartholomew, this branch of law determines the point when an outside party is held responsible.
Bartholomew feels that by expanding the scope of secondary liability on copyright laws, courts aren't respecting traditional legal principles.
"There are time-honored moral principles about when it's OK to make someone liable who didn't do the wrongful act," he said.
According to Bartholomew, it's easier to find technology manufacturers liable than individuals actually performing illegal copying. There's concern that if courts continue to erase lines drawn to define secondary copyright liability, no requirements will be left.
In the past, proof of "direct financial benefit" by manufacturers was necessary to find a secondary source liable.
"Trademark laws still require direct financial benefit, but copyrights have stretched requirement so far it doesn't really exist anymore in some ways," he said.
In the article, Bartholomew and Tehranian point out how courts treat copyright and trademark cases differently because of the panic over new technologies.
Bartholomew believes that copyrights may be more in focus because of how people who own them are perceived.
"There's a romantic conception of people who produce copyrighted works," Bartholomew said. "It's romantic to think about someone writing the great American novel or celebrities like Sheryl Crow and Carlos Santana producing hit songs."
Currently, the recording industry is deromanticizing file sharing of hit songs by attempting to track down those who download illegally - especially on college campuses.
"They recently started to extend even more letters to colleges telling them they're put on notice that if they know illegal downloading is going on, to shut down student accounts," he said.
File sharing is infringement if copyrighted content is copied and distributed for payment, Bartholomew said. He thinks that courts have rushed too quickly to shut down this behavior.
"They're expanding copyright laws so they're more protective of the interests of people who own copyrights, and less protective of the general public, who want to use copyrighted works," he said.
Bartholomew predicts that copyright laws will get stronger unless people voice a desire for less restrictive laws.
"Students can get involved by letting legislative representatives know how they feel, or by choosing to listen to music artists that encourage downloading and file sharing rather than those that are assertive about their copyrights," he said. "It's important for the public to take interest, because the content we get is going to be influenced by what kind of legal system we have."
Photo: Courtesy of Laron Fomby
