Will 2015 see the end of Copyright?

SAN FRANCISCO - Dec. 29, 2014 - PRLog -- “Tolerated use” is a term that refers to the contemporary spread of millions of technically infringing, but nonetheless tolerated use of copyrighted works on the internet.(1)

This mass of millions of 'casual' infringements, contained in personal websites, blogs, powerpoint presentations et cetera are, if known about, normally regarded as being of a low value per transaction and therefore unenforceable due primarily to the high costs and complexity of copyright litigation and the difficulty in establishing loss.(2)

In the vast majority of cases of infringement on the internet the owner is unaware that he has been infringed at all. While there are various software tools available that can assist in locating copies of text anywhere online, due the perceived lack of economic incentive described above they are rarely used.

It has been argued that what is happening today is actually a massive and fully legal exploitation of the "fair use" doctrine (a legal defence to copyright infringement), but it is unknown which, if any, of these infringements a court would agree were "fair use" because they are not tested.(3)

Where there has been legal action, there is no evidence of the expansion of the fair use doctrine in any significant way.(4) Bloggers have been found liable for posting content to their websites despite the non-commercial and informational nature of their activities.(5)

With the increasingly commercial nature of all aspects of the public internet and the "monetisation" of site traffic via ubiquitous advertsing services such as Google Adsense(TM) and other variants, it is difficult to argue any part of the internet is truly "non-commercial" and so the application of the "fair use" defence would seem to remain limited.

Another contributor to 'tolerated use' is the perceived marketing value to the owner of having multiple copies of his work appear across the internet. But this marketing value is limited to situations in which such economic advantage can be captured by the owner at some point by attribution, citation or hyperlinks back to the owner's assets, directly or indirectly. However, in many cases of casual infringement there are no obvious benefits of this nature and the owner of the copied work cannot be identified in any way from the infringing material alone.

While certain commentators and groups have hailed this situation as the impending death of copyright(6), and academics have noted its detrimental effect on the importance of copyright law (7), it would seem that the pendulum may be about to swing back in favour of owners once again.

The first factor that would appear to have the potential to instantly change the status of casual infringements from harmless to significant is the proposed introduction of a "small copyright claims" procedure by the US Copyright Office.(8) Having completed 3 years of inquiries and receiving significant industry submissions and support, it looks like this will be legislated in the near future, allowing a much cheaper and more accessible process to be available for internet copyright infringements.

The second factor is the development of online software tools that aim to reduce the high cost and complexity of finding and proving casual infringements as well as the use of such tools to inform owners of infringements, calculate economic benefits and provide cost effective means of financial recovery from infringers.

As described above, the main barriers to unlockling the flood of pent-up technical copyright infringements are:

   1) Lack of economic incentive;
   2) High costs;
   3) High complexity; and
   4) High risk.

Plfer.com is an online website application that has been built to address the exact issue of unenforced casual copyright infringement, and to break down these specific barriers, on the assumption that the sheer volume of infringements will enable it to generate significant income despite offering these services at a fraction of the cost of equivalent legal advice.

Plfer includes expert-system logic based on the latest academic research as to which copies will amount to technical infringements in addition to traditional copy scanning techniques. It further provides templates of letters and forms users can send to infringers demanding financial compensation, requesting removal of infringing material or suggesting the inclusion of fair attribution, citations or hyperlinks.

By offering a method of cheaply locating and valuing infringements, preparing the documentation and even locating the infringer's contact details automatically, Plfer dramatically reduces the barriers to enforcing casual infringements.

Taking a matter to the "letter of demand" stage would previously have cost a copyright owner thousands of dollars in legal fees. This can now be achieved in a few mninutes for less than $10.

Plfer differs from other online copyright service providers in that it seeks to take no pecuniary interest in any of the copyright infringements it uncovers. It does not become a party to any of the cases it reveals but merely assists to provide evidence, pro-forma documents and "wizards" for users and their advisors. Introductions to participating law firms are provided and law firms compete for Plfer's market of actionable technical infringements - currently worth over $500,000,000 and growing daily.

While primarily providing a user interface for processing individual web pages, bulk services and automated scanning services are also available.

Plfer is available in beta and free to use at http:/plfer.com.


(1) Wu, Tim "Toletrated Use", Columbia Law School Working Paper Series, 2008, avail at
http://papers.ssrn.com/paper.taf?abstract_id=1132247 at p2
(2) Ibid at p4
(3) Ibid at p6
(4) Balganesh, Shyamkrishna “THE UNEASY CASE AGAINST COPYRIGHT TROLLS“ - Draft of July 9, 2012 - “Do not cite/circulate without permission“, Available at www.plfer.com/#help/faq_adv/balganesh__shyam_-_paper.pdf at p17
(5) Ibid - for example, see see L.A. Times v. Free Republic, 2000 WL 565200 (C.D. Cal., 2000).
(6) See, for instance https://stpeter.im/writings/essays/publicdomain.html and http://freeculture.org/blog/2005/11/03/after-copyright-what/
(7) Balganesh, Shyamkrishna "COPYRIGHT INFRINGEMENT MARKETS", 113 COLUM. L. REV. (2013), available at http://ssrn.com/abstract=2233065, at p 10 - "In the year 2005, a total of 5,796 new copyright cases were filed. This figure has seen a steady decline since, and by 2011 this figure shrunk to 2,297—an astounding 60% drop.". In the same period, the number of actual copyright infringements increased by an estimated 300%. (Internet growth - 972m users in 2005 - to 3000m users in 2014 - http://www.internetworldstats.com/emarketing.htm.)
(8) http://copyright.gov/docs/smallclaims/