Copyright Legislation and Technological Change

Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we have relied on for copyright revision is largely to blame for those laws\u27 deficiencies.

Copyright Compromise and Legislative History

Copyright law gives authors a property right. But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the property right.\u27 Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts\u27 constructions of an earlier and very different statute on the same subject.

The Public Domain

This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain\u27s place within the copyright scheme. Copyright grants authors \u27 rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of originality, by reference to which copyright law purports to define property rights, provides an insufficient guide. The public domain - a commons that includes those aspects of copyrighted works which copyright does not protect - makes it possible to tolerate the imprecision of these property grants. Part II of this article traces the historical developmenf of the public domain in copyright case law. Courts have gradually come to deny copyright protection to ideas, methods, systems, plots, scènes à faire,18 and (sometimes) facts, even when blatantly copied from plaintiffs\u27 works. The courts have not sought profound theoretical justifications for denying protection, and different classes of cases reveal different motivations. Courts have seemed to invoke the public domain, however, in cases where the breadth of plaintiffs\u27 asserted property rights appeared to threaten the enterprise of authorship by curtailing the ability of authors to pursue their craft. Part III explores familiar theoretical justifications for the public domain and finds them for the most part unsatisfactory. Therefore, Part IV returns to the principle of copyright as property. This section argues that originality is a legal fiction. It is inherently unascertainable, and it is not the battleground on which infringement suits are in fact decided. Because authors necessarily reshape the prior works of others, a vision of authorship as original creation from nothing - and of authors as casting up truly new creations from their innermost being - is both flawed and misleading. If we took this vision seriously, we could not grant authors copyrights without first dissecting their creative processes to pare elements adapted from the works of others from the later authors\u27 recasting of them. This dissection would be both impossible and unwelcome. If we eschewed this vision but nonetheless adhered unswervingly to the concept of originality, we would have to allow the author of almost any work to be enjoined by the owner of the copyright in another. Part V of this article suggests that the public domain provides the solution to this dilemma and examines that solution from the perspectives of potential defendants, potential plaintiffs, and the system of copyright law as a whole. The public domain contains elements of authorship that easily seep into our minds and our language or that for other reasons can be claimed by many authors. A broad public domain protects potential defendants from incurring liability through otherwise unavoidable copying. It protects would-be plaintiffs by relieving them of the impossible and unwelcome obligation to prove the actual originality of all elements of their works. It protects the copyright system by freeing it from the burden of deciding questions of ownership that it has no capacity to answer

Copyright Law and Electronic Access to Information

At the same time as we have been discovering the Internet’s enormous potential to enhance access to information and revolutionize the ways libraries do business, the Internet’s high profile in popular media has made it the focus of a wide spectrum of fears about the future. This paper focuses on pending proposals to amend copyright law to enhance the control copyright owners wield over the appearance of their works on digital networks. These proposals would stifle libraries’ use of the Internet. Libraries and their supporters must participate in the copyright debate, and think creatively about new models for copyright. The paper is adapted from a speech given to the Library and Information Technology Association at the 1996 Annual Conference of the American Library Association. Digital technology and the Internet have the potential to revolutionize the ways libraries do business, and to open up electronic access to information for millions of people who have not had meaningful access before. You don’t need me to tell you that library groups have been looking at this potential for at least a decade. Libraries of various sorts have been gradually getting hooked up to the Internet and have been gradually exploring the potential of digital technology for reserves, for document delivery, for preservation

Digital Copyright

In 1998, copyright lobbyists succeeded in persuading Congress to enact laws greatly expanding copyright owners\u27 control over individuals\u27 private uses of their works. The efforts to enforce these new rights have resulted in highly publicized legal battles between established media and new upstarts. In this book, law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society? She argues for reforms of the 1998 copyright law that reflect common sense and the way people actually behave in their daily digital interactions. This paperback edition includes an afterword that comments on later developments, such as the end of the Napster story, the rise of peer-to-peer file sharing, the escalation of a full-fledged copyright war, the filing of lawsuits against thousands of individuals, and the June 2005 Supreme Court decision in the Grokster case.https://repository.law.umich.edu/books/1000/thumbnail.jp

Lawful Personal Use

Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn\u27t drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on whether a particular personal use is lawful or infringing.

War and Peace: The 34th Annual Donald C. Brace Lecture

I\u27d like to thank the Copyright Society and the Brace committee for inviting me to speak to you this evening. I am honored that you invited me to give this lecture. I want to talk a little bit about war - copyright war - and then I want to talk a little bit about peace. It\u27s become conventional that we\u27re in the middle of a copyright war.\u27 I tried to track down who started calling it that, and what I can tell you is that about ten years ago, about the time that copyright lawyers everywhere were arguing about the White House Information Infrastructure Task Force White Paper Report, we started seeing the phrase copyright war used as a figure of speech to express some of the passion and vitriol that characterized those arguments. It popped up more and more often until, by a couple of years ago, all the irony had leached out of the phrase and people were matter-of-factly referring to what\u27s going on as the copyright war in news accounts, law review articles, and weblogs. So, by 2003, the usage had become standard. That year, by the way, was the year we saw the district court decision in Grokster, the Supreme Court decision in Eldred, and the first lawsuits filed against individual consumers for using peer-to-peer file sharing networks

Copyright Legislation and Technological Change

Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we have relied on for copyright revision is largely to blame for those laws\u27 deficiencies.

Copyright, Compromise and Legislative History

Copyright law gives authors a property right. But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the property right.\u27 Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts\u27 constructions of an earlier and very different statute on the same subject.