Ch10Part2
Version 3, changed by mgarlick. 06/01/2005. Show version history
On the Reports of Copyright’s Demise
[Please see the discussion page for more comments on possible amendments to this book.] Roughly put, copyright gives a copyright holder the right to control the copying of that to which the right extends.1 I have a copyright in this book. That means, subject to some important exceptions, you cannot copy this book without my permission. The right is protected to the extent that laws (and norms) support it, and it is threatened to the extent that technology makes it easy to copy. Strengthen the law, holding technology constant, and the right is stronger. Strengthen the technology, holding the law constant, and the right is weaker.2
In this sense, copyright has always been at war with technology. Before the printing press (and especially the availability of paper3 ), there was not much need to protect an author’s copyright. Copying was so expensive that nature itself protected that right. But as the cost of copying decreased, the threat to the author’s control increased. As each generation has delivered a technology better than the last, the ability of the copyright holder to protect her intellectual property has been weakened.
But up to now, the law could respond quite easily. If photocopying machines in libraries posed a new threat to the right, then the law could be modified to better deal with photocopying machines.4 If videotape allowed TV viewers to tape a show to view at a different time, the law could be modified to deal with time shifting.5 In all these cases, the real protection accorded to property is the sum of these different kinds of constraints; we can see that increases in legal protection, in response to increased threats to copying,6 may on balance simply restore the power an author once held rather than increase the author’s right.7
Fortunately, from law’s perspective at least, technological changes have always been gradual. Copies have become better and cheaper, but only by degrees, and over a relatively extended period. There have been shocks to the system, but the law has had time to react when the old system seemed out of step—by slowly modifying its protections and extending them where technology seemed to be eroding them.8
[Do we want to add to this para the argument that not only does digital technology rapidly challenge the law's power to protect against digital copying but also norms, fashioned in the era of the physical copy & the analogue device, tend to equate physical possession with their legal scope of use.] It is said by some that cyberspace changes not only the technology of copying but also (and more important) the power of law to protect against illegal copying.9 It does both simultaneously, and extremely quickly. Not only does the Net promise perfect copies of digital originals at practically no cost,10 but it also threatens to impose an almost impossible task on law enforcers: tracing and punishing copyright violators. In the terms of chapter 7: the effective constraint of law (against copying) disappears just at the time when the constraints of technology disappear as well. The threat posed by technology is maximal, while the protection promised by law is minimal. For the holder of the copyright, cyberspace appears to be the worst of both worlds—a place where the ability to copy could not be better, and where the protection of law could not be worse.
Talk like this gave birth to the panic of copyright holders, who wanted to see legislative changes made to better protect the copyright. For of course, the predictions of cyberspace mavens notwithstanding, not everyone was willing to concede that copyright law was dead. Intellectual property lawyers and interest groups pushed early on to have law shore up the protections of intellectual property that cyberspace would erase.
Footnotes
1 Copyright gives other rights as well—such as the right to reclaim an assigned copyright or the right of first sale. For a lucid introduction, see William F. Patry, Latman’s The Copyright Law, 6th ed. (Washington, D.C.: Bureau of National Affairs, 1986). For something more than lucid, see James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard Journal of Law and Technology 10 (1996): 47. Edit Delete
10 As Nicholas Negroponte puts it, “Most people worry about copyright in terms of the ease of making copies. In the digital world, not only the ease is at issue, but also the fact that the digital copy is as perfect as the original and, with some fancy computing, even better. In the same way that bit strings can be error-corrected, a copy can be cleaned up, enhanced, and have noise removed. The copy is perfect”; Being Digital (1995), 58. Edit Delete
2 See Richard A. Posner, Law and Literature, 2d ed. (Cambridge, Mass.: Harvard University Press, 1998), 389–92 (discussing incentives to write even without copyright). Edit Delete
3 For the real constraint on publication initially was paper, not presses. Before the invention of wood-based paper, paper was produced from cloth. Cloth, however, was extremely expensive. While a persistent myth is that one source for this cloth was Egyptian mummies (Scott D. N. Cook, “Technological Revolutions and the Gutenberg Myth,” in Internet Dreams: Archetypes, Myths, and Metaphors, edited by Mark Stefik [1996], 75), there is no support for this claim. See Joseph A. Dane, “The Curse of the Mummy Paper,” Printing History 17 (1996): 18. Nonetheless, the shortage of paper is well established (ibid., 18–19). I am grateful to Consuele Dutschke for help with this history. Edit Delete
4 For a complete and readable account of the transformation in technology, and law’s response, see Paul Goldstein, Copyright’s Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox (New York: Hill and Wang, 1994). Edit Delete
5 See Sony Corporation of America v Universal City Studios, Inc., 464 US 417, 421 (1984), which, in defining “time-shifting” as using a VTR principally to record a program one cannot view as it is being televised and then to watch it once at a later time, classifies this practice as a fair use of a copyrighted work that does not entitle the copyright holder to any remedy. Edit Delete
6 See Jonathan Evan Goldberg, “Now That the Future Has Arrived, Maybe the Law Should Take a Look: Multimedia Technology and Its Interaction with the Fair Use Doctrine,” American University Law Review 44 (1995): 919; Mary L. Mills, “New Technology and the Limitations of Copyright Law: An Argument for Finding Alternatives to Copyright Legislation in an Era of Rapid Technological Change,” Chicago-Kent Law Review 65 (1989): 307; Kenneth P. Weinberg, “Cryptography: ‘Key Recovery’ Shaping Cyberspace (Pragmatism and Theory),” Journal of Intellectual Property Law 5 (1998): 667. Edit Delete
7 Judge Posner usefully distinguishes between changes that might help an individual author and changes that help authors as a class. Some decreased copyright protection for authors as a whole would benefit authors as a whole, since copyright imposes costs on authors (the writing of others is an input to their own future writing); see Law and Literature, 389–405. Edit Delete
8 See Michelle Skatoff-Gee, “Changing Technologies and the Expectation of Privacy: A Modern Dilemma,” Loyola University of Chicago Law Journal 28 (1996): 189, 201–4, who discusses Congress’s enactment of the Electronic Communications Privacy Act of 1986 in an effort to update existing law and keep pace with changing technology. But see Sandra Byrd Petersen, “Your Life as an Open Book: Has Technology Rendered Personal Privacy Virtually Obsolete?,” Federal Communications Law Journal 48 (1995): 163, who argues that privacy laws in the United States have not kept pace with technological developments. Edit Delete
9 See Esther Dyson, “Intellectual Value,” Wired (July 1995): 137, who discusses the effect of the new economic environment of the Net on intellectual property. John Perry Barlow (“The Economy of Ideas,” Wired [March 1994]: 85) asserts that “copyright and patent law was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry.” Edit Delete
