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.

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, 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 Economics of Open Access Law Publishing

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they\u27ve attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn\u27t limit ourselves to the question whether open access journals have fielded a business model that would allow them to ape conventional journals in the information marketplace. We should be taking a broader look at who is paying what money (and comparable incentives) to whom, for what activity, and to what end. Are either conventional or open access journals likely to deliver what they\u27re being paid for? Law journal publishing is one of the easiest cases for open access publishing. Law scholarship relies on few commercial publishers. The majority of law journals depend on unpaid students to undertake the selection and copy editing of articles. Nobody who participates in any way in the law journal article research, writing, selection, editing and publication process does so because of copyright incentives. Indeed, copyright is sufficiently irrelevant that legal scholars, the institutions that employ them and the journals that publish their research tolerate considerable uncertainty about who owns the copyright to the works in question, without engaging in serious efforts to resolve it. At the same time, the first-copy cost of law reviews is heavily subsidized by the academy to an extent that dwarfs both the mailing and printing costs that make up law journals\u27 chief budgeted expenditures and the subscription and royalty payments that account for their chief budgeted revenues. That subsidy, I argue, is an investment in the production and dissemination of legal scholarship, whose value is unambiguously enhanced by open access publishing

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

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

Digital Copyright and the Progress of Science

Let me start with a truism: Networked digital technology has transformed information and the way we interact with it. Digital information is dynamic rather than fixed. What we think of as “documents” can change constantly. That’s challenged our notions of what it means to archive material

Campbell at 21/Sony at 31

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty over the scope of liability for new uses to litigate some new businesses into bankruptcy before their legality could be determined. These developments push fair use to shelter new uses and users. When lawyers for copyright owners complain that fair use has stretched beyond their expectations, they fail to acknowledge their own responsibility for its growth. This Article takes up these questions with particular attention to the thirty-one-year-old decision in Sony v. Universal Studios, and Congress’s assumptions about individual and contributory liability for personal copying before and after the Sony case

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.

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.