Date Wed, 15 Jan 2003 135324 -0500
From David Dailey <david.dailey@sru.edu>
To Multiple recipients of list <cni-copyright@cni.org>
Subject copyright entrapment

(This is an admittedly sour response to today's Supreme Ct. decision.)

As a parent, one tries to raise the kids right. The little ones should learn to do what is right and what is legal (or in an imperfect world that the two diverge, to make informed choices between the two). The world is, however, filled with what some might view as temptation.

I am thinking, of course, of the coloring books, action figures, and computer games sold to our children by corporations large and small. Sure, on the surface they are harmless, playful, even educational toys to help us in the raising of our children. But lurking beneath, is the true and hidden intent to lure children into making unauthorized derivative artwork and to allow them to hone the skills of copyright infringement so that one day they may be sued for precisely that behavior.

With coloring books and certain computer games, one is encouraged to connect the dots to reveal pictures of Quango Quack, the "famous agent accountable to no government." One is allowed to use a "Mouse" to place various fabric fill-patterns into the tasteful garments worn by Buzz Bovine, "big beef of the public domain." One can even position multiple copies of Quango and Buzz next to Ms. Chievous, the alluring Lorelei, while she performs the dance of seven veils to some oddly familiar melody dating from just after 1923. The list obviously goes on, as anyone knows who has purchased software (oops, did I say purchase? pardon the slip) from any of those large corporations that shall remain nameless (but whose famous characters adorn our hamburger bags, our backpacks, our t-shirts, and, yes, even our crayon boxes), and has then watched the glee in our child's eyes as she choreographs the most imaginative of scenarios.

"Oops! Sorry dear, but derivative works are one of the exclusive rights of the copyright holder and may not be used without their written permission." "But Dad! There is an implied license to use the software to do what it can do!" "Well, sweetie, I'm sorry but I just read the license agreement that accompanies the software, and it makes it pretty clear that the manufacturer retains all rights, even those that don't yet exist. So you will have to put Quango Quack back into the tool tray over there on the left side of the screen, and I'm sorry but you won't be able to put those Buzz Bovine stickers on your Samantha Statute lunchbox anymore -- that button that says "print" was certainly not meant for you to mingle marks, and don't you think that particular juxtaposition would be just too dilutory? And do you really think that Samantha's dress was meant to be draped over your Ms. Chievous doll? You may remember that the doll didn't even have a license agreement -- there is no free trade dress agreement for her."

"It is very good for you to learn to anticipate all those rights which don't currently exist but may later on, since that's how you grow up...."

The term "entrapment" seems to be defined differently by lawfolk and layfolk.

As a non-lawfolk, I find the definition in the layman's dictionary ("the action of luring an individual into committing a crime in order to prosecute the person for it" from http//www.m-w.com/) matches my sense of the term fairly well. But 'Lectric Law Library's Lexicon (http//www.lectlaw.com/def/e024.htm) offers "A person is 'entrapped' when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit;..." That is, lawfolk seem to require that the action of entrapment be done by law enforcement officers, rather than by the studios or lawfolk.

So maybe what I am writing about here is not really entrapment, in the legal sense. Perhaps it is only "enticement" or just a simple case of "contributory infringement by the copyright holder". Maybe it needs a new term.

David Dailey


A collection of random postings to cni-copyright during the years 1994- . Humor and dread.