Digital devices by their nature make copies. Digital cameras take pictures, including pictures of pictures and pictures of copyrighted works. Take a snapshot in Times Square, and you have infringed about 200 copyrights, more if you use a wide angle lens. Now I am not suggesting that you will be successfully sued, or that you might not be able to take refuge in the “fair use” doctrine, but there is the potential for billions of dollars of infringement liability for genuinely innocent conduct.

Often times, your liability may not depend on what you do, but what technology you use to do it. Thus, if you buy or rent a digital video recorder from your cable TV or satellite provider, and record television shows for later viewing, you are OK. But if that DVR is located at the cable TV company and not in your living room, you have infringed. Watch a DVD and turn down the sound at the naughty bits, you are OK. Take out the naughty bits, you are creating an unauthorized derivative work and have liability. Stream a song to your cell phone, OK; download it, a felony -- even if you immediately delete it.

Our ability to track everything you read, view, look at, download, not only enhances your potential copyright liability, but the ability to enforce such liability. ISP’s, employers, colleges and universities, phone companies, search engines, online merchants, credit card companies, online photo companies, peer to peer file sharing providers, user generated content sharing entities, social networking sites and others maintain records of our viewing, copying, forwarding, and other potentially “infringing” activities. This information may be subpoenaed, demanded, requested, or voluntarily turned over with our without our consent. Thus, every day we may commit millions of dollars worth of potential infringement, and we are keeping detailed records of exactly what we did.

And heaven help the poor person to whom the digital trail erroneously points. If the ISP’s records show that your IP address committed an infringement, it can be forced to shut you down, disable your access, offload your content, and turn you in to the intellectual property police. Even when the RIAA, Business Software Alliance (BSA) and Motion Picture Association of America (MPAA) are trying to do the right thing and go after genuine infringing activity, the fact that computers may be a shared resource (with kids and adults using the same computer) or the fact that servers can be hijacked, or people’s general ignorance about security makes for potentially serious civil and criminal consequences for people who are doing nothing wrong.

Then there is the problem of derivative liability. Sure, if I download copyrighted songs I should have some liability. But if I do it at work, should my employer have liability? If I do it at school, should the university be forced to pay too? What about the company that makes the software that furthers the infringement? Should they all be forced to pay? Should they also be forced to pony up records relating to my activity? The answer to the latter is probably yes.

One of the biggest problems with copyright infringement is the general sense among those infringing that they are not doing anything particularly “wrong.” First, as I noted, there is an awful lot of infringing activity that quite frankly is done deliberately and willfully but not wrongfully.

Part of the problem deals with what I would call the iPod phenomenon. If I went into a Tower Records (OK, there are no more Tower Records, but stay with me here), and slip a CD into my pocket without paying, its pretty clear I am committing a crime. Its also pretty clear that, at best what I stole was worth whatever was on the sticker, say 20 bucks. That’s because I have some physical manifestation of the intellectual property.

On the other hand, lets say my buddy loans me the same CD, and I listen to it without paying. No problem. Now I make a copy of one of the 20 tracks to listen to later. An infringement? Sure. What’s the damages? Lets assume that the only way you can get the song is to buy the entire CD. Are the damages $20? One buck? $150,000? Clearly I acted “willfully” when I copied the song, so there is the potential for statutory damages. Finally, when what I own is just 0’s and 1’s on a digital device (a track on my iPod) and not what is perceived to me as a digital manifestation of that intellectual property, I may feel as if I haven’t stolen anything. I don’t steal a song when I listen to it on the radio, and I don’t feel like I have stolen it when I record it from the radio, even though the copyright law might consider the latter an infringement.

Ultimately, the recording industry is using the copyright law against Ms. Thomas to place a stake in the ground. In an effort to prevent piracy generally, they are seeking draconian penalties against this individual. Let’s just hope that Scott Adams doesn’t try to do the same thing about all the “Dilbert” cartoons on the walls of my office.