New Copyright Paradigms

Jessica Litman

Professor of Law

Wayne State University

The astonishing recent growth of digital networked technology has challenged our thinking about information, authorship and intellectual property. We've seen visionary thinking about how digital technology could transform the ways we read, write, gain access to, learn from and use information.[1] At the same time, we've witnessed parochial arguments about how the language of copyright statutes written before the development of the technology should be construed or revised to permit current stakeholders to hang on to their current stakes in the information market. Content providers have argued that, since the copyright statute has always made commercial distributors of protected works strictly liable for infringing reproductions, online service providers should be strictly liable when their subscribers transmit infringing reproductions.[2] Representatives of copyright holders have insisted that since the privilege to loan, give or sell a copy of a protected work has never permitted one to make additional reproductions, the privilege is and ought to be inapplicable to digital transmissions, since they, by necessity, involve the creation of temporary reproductions in computer memory.[3] Libraries and educators are not blameless here; they too have been arguing that we should reconfigure the language of the law to ensure that it continues to be legal for them to do all the things they now do, and their digital equivalents.[4]

I want to offer a few (possibly incendiary) ideas in this debate. The first one is that if what we really want is to preserve the current legal balance among uses of protected works that are subject to the copyright holder's legal control, uses that are free to all comers, and uses that are privileged for a well-defined class of users, the problem is trivially easy to solve. Drafting legislative language to extend current proscriptions and privileges to cover their functional equivalents in networked digital environments on functionally equivalent terms is an easy task in any case in which we can agree on the scope of current proscriptions and privileges, and an achievable one even in most cases in which we can't agree. Most of the proposals that have been introduced under the aegis of mere clarification and extension, however, have been nothing of the sort: Rather, they have been attempts to expand current stakeholders' preserves by annexing territory that seems not yet claimed. The characterization of those proposals as maintaining or restoring the preexisting balance is mere rhetorical flourish.[5]

If what we sought were merely to extend the preexisting balance, doing so would be straightforward. I don't think that's what anyone actually wants; rather, the status quo stands in here as a way to argue for what is really an improvement in one's position, and as a fall-back, compromise position to which one is willing to retreat. It seems likely that a critical mass of stakeholders will ultimately find themselves agreeing that they could live with something not too distant from the current balance. Something that at least seems akin to the present balance, then, is more likely to emerge from the political process than proposals that diverge further from current law. As of this writing, interest groups affected by copyright from all points along the spectrum are expending enormous reserves of energy to make the case that the proposals they support are the ones that most nearly capture the spirit of the status quo.[6] Let me suggest, however, that the legal status quo ought to be abandoned, and that copyright law should be replaced with something different from any actual copyright law this country has ever had on its books.

i. the current balance and how it grew

The last several years have seen a flurry of activity directed toward revising the copyright laws to fit them around digital technology. Most of the effort thus far, both on the United States's national stage and in the international arena, has seemed to be aimed at making the Internet and its descendants safe for the current proprietors of copyrighted material. The United States Department of Commerce, egged on by a coalition of organizations representing copyright owners, released a White Paper report in September, 1995 that argued that the copyright statute then on the books secured to copyright owners extraordinarily expansive control of uses of their works over digital networks. The White Paper recommended a few statutory amendments predicated on the assumption that modest changes in statutory wording would be all that was needed to nail those expansive rights down.[7] The suggested legislation was introduced immediately in the House and Senate, where it attracted bipartisan support.[8] As of this writing, it is uncertain whether the legislation will pass. Similar proposals have been introduced by the United States as the basis for an international treaty;[9] it is not currently clear whether the U.S. Department of Commerce can persuade the rest of the world to sign on to its vision.

The substance of the proposals is critiqued elsewhere in this volume.[10] It seems likely that they would result in a transformation of the relationship our copyright law bears to our larger information policy. The supporters of the proposals endorse them without being willing, so far, to engage in discussion of their policy consequences. Instead, the strategy of copyright holders has been to insist that Congress made all the relevant policy choices twenty years ago, when the Internet was barely a gleam in the eye of the U.S. Department of Defense.[11] When policy questions are raised, the supporters of the White Paper have taken refuge in technicalities.

U.S. copyright law has long-standing, uncontroversial privileges and exemptions that, for example, allow one to read, view, listen or browse works without asking for permission, or allow one to lend, rent or resell copies of works one owns. The White Paper report interprets current law to subject activities like browsing documents on the Internet to the copyright holder's exclusive control, beyond the shelter of most exemptions and privileges.[12] Instead of addressing the significant policy concerns that would arise from expanding the copyright owner's control to encompass every act of reading, the White Paper and its supporters explain that the current copyright statute gives copyright holders exclusive control over reproduction of works in copies, and that each appearance of any work in the volatile memory of any computer anywhere is a reproduction in a copy within the meaning of the statute, and therefore the copyright owner's to license or forbid.[13] Instead of explaining the rationale for restricting the loan of electronic documents to exclude online transfers entirely, the White Paper and its supporters insist that any transfer of a document through transmission necessarily involves the reproduction of the document in volatile computer memory, and would therefore be illegal unless licensed.[14]

The consequences of the White Paper's vision of the law would be to give the owners of copyrights broad powers to license or prohibit a wide variety of uses that are not currently within their legal control. To the extent that the proponents of this view address its policy implications at all, they assert, without much justification, that without extensive control over the uses of their works, proprietors will decline to make their material available on the Information Highway.[15] For the most part, though, the defenders of the proposals have claimed that it is current law, passed by Congress lo these many years ago (rather than they) that strike the balance where they insist it be struck.[16]

A number of commentators have addressed the vulnerabilities of these technical arguments on technical grounds-- and there are many.[17] Some have criticized the proposals on policy grounds as well.[18] In response to the criticism, the White Paper's supporters have insisted that any policy consequences result directly from the language of the current law, and are therefore, one would gather, out of bounds. While I believe that the depiction of current law in the White Paper report is distorted, and that distortion is deliberate,[19] I also would argue that the aversion to serious policy discussion is a terrible mistake.

Copyright lawyers are, among other things, technicians. We have invested huge resources in a process for drafting legislation that places a premium on arguing from precedent and technicalities, and seeking consensus among copyright owner and commercial user interests, whether or not that consensus makes sense. The proponents of the White Paper's proposals seem no longer to even understand objections of the form: "The rule you suggest would make lending libraries, or long distance teaching, or private browsing illegal." They have responded not with arguments explaining why lending libraries, or long-distance learning, or private browsing ought to be illegal, or at least licensed, in the brave new world, but instead by maintaining that that's the way the technicality crumbles: "That's not new, it's because of long copyright precedent," they've said, "it results in a 'reproduction,' you see, and copyright holders have control over reproductions."[20]

It is easy to be seduced by arguments like these. Copyright professionals have lived with the copyright law's peculiar collection of categories, divisions, and cubbyholes so long that we often forget how little intuitive sense they make to the uninitiated, while copyright naifs can often be persuaded that they simply don't have a clue about the way the rules work. It's important to understand, though, that the current copyright balance is not the product of some magic process for discerning Truth and Beauty; we have arrived at our current law through a combination of accident and the self-interested efforts of copyright affected industries.

The history of copyright legislation has been characterized by multilateral bargaining among affected stakeholders. Some of the provisions in the current statute are there because affected interest groups asked for them, and other groups didn't object. Others are the result of hard fought bargains among affected interests. The resulting law grew by accretion, as new groups showed up to propose new provisions, and affected interests struck new bargains among themselves. Often the lines were drawn where they were because those lineswere most acceptable to the interests that showed up at the bargaining table.[21] When a statute reflects the results of private bargaining, though, it is instructive to pay attention to interests that were not well-represented in the bargaining. Library groups were there; they asked for and got the reproduction privileges embodied in section 108 of the statute.[22] Educators were there: they asked for and got both specific (if very limited) privileges related to classroom performance and long distance education,[23] and a detailed discussion, inserted in the statute's legislative history, of multiple copying for classroom use within the shelter of the fair use doctrine.[24]

The general public was not there, and a variety of entities purporting to speak on its behalf were busy with more specific concerns. Library groups and educators focused on threats to their common, everyday activities. Congress and the Copyright Office paid more attention to encouraging the diverse private groups to compromise on something, anything, than they did to asking how the details of the compromises would affect individual members of the public. Another large class of interests that couldn't be there were the copyright-affected businesses and institutions that did not yet exist, because they would be brought into being with the birth of new media. There were no commercial Internet service providers in the early 1970s. The World Wide Web was not yet a glimmer in Tim Berners-Lee's eye, and there could be no web page designers at the table. Finally, a careful analysis of the ways the current law meets and fails to meet the needs of interested parties, and the ways that it has done so through U.S. history, reveals that the interests who were at the bargaining table cannot even be deemed rough proxies for the interests not yet in being.[25] Instead, the upstart companies-to-be were routinely disadvantaged by the bargains, because the private parties crafting the statute understood that it was in none of their interests to give potential new competitors any sort of break.

If current stakeholders, then, report that they are well-pleased with the laws now on the books, it is hardly surprising. If they insist that under no circumstances should we think of replacing that law with a new one, it is what we ought to expect. When they characterize the provisions of current law, however, as embodying sacred policy concerns that make our country great, we should listen more skeptically than we do. The current balance embodied in the copyright law works fairly well, all things considered, but we arrived at it more by accident than by design. We ought at least to consider whether we might do better if we were willing to give it up.

ii. a couple of easy fixes

Having said that, I would like to offer a couple of examples to back up my argument that it would not be very difficult to arrive at language that writes specific aspects of the current copyright balance into the law by extending current doctrine to functionally equivalent activities in new media. The rhetoric coming from both sides in this debate invokes the gods of balance. Technological development is said to have altered the balance embodied in the law.[26] The White Paper's proposals are said to be designed to alter that same balance.[27] Both charges are well-founded. If our principal goal were to maintain (or restore) the balance enacted by Congress in 1976, however, drafting responsive amendments would not be a difficult task.

The first sale doctrine is exemplary: the doctrine terminates the copyright owner's control over distribution of a particular copy of a work after the first authorized distribution. It was devised by courts in the nineteenth century,[28] in response to copyright owners' efforts to prohibit or control the resale of second hand books. It provides a copyright exemption without which lending libraries, art galleries, videotape rental stores, and second hand bookstores would all be illegal. The first sale doctrine encourages the operation of secondary markets for access to copyrighted works, while preserving the copyright owner's opportunity to demand compensation for the first distribution of any given copy. The same limitation allows the purchaser of a newspaper to pass it on to a friend or drop it in the recycle pile; it permits the recipient of a letter to show it to a colleague or donate it to a library. The copyright owner is thus entitled to a reasonable opportunity to seek compensation without being able to control all uses of her protected work, and without being able to seek rents from all people who may see, hear, listen to, read, use, or own a copy of it.

The authors of the White Paper have been adamant that the first sale doctrine should not apply in connection with digital communications. The problem, they've insisted, is a technical one. The first sale doctrine has always permitted the owner of a copy to dispose of that copy by resale, by loan, and in most cases,[29] even by rental. It has not, however, permitted the owner of a copy to make reproductions of the legitimate copy and also dispose of them. Since it is not possible, as a technical matter, to transmit a copy of a document without causing a further digital reproduction, the first sale doctrine cannot permit any transfer of documents by electronic transmission. Thus, while it may be legal under current law for a library patron to walk up the steps of the New York Public Library, and read the library's copy of this book, or even check it out and hand carry it back home, it is not and should not be legal to dial up the New York Public Library and peruse the text online or borrow a copy via electronic transmission.[30]

Instead of accepting that the first sale doctrine is inapplicable in the digital context because of a technicality, we might look for a functionally equivalent privilege that would permit the first sale doctrine to continue to operate so that the secondary market in access to protected works could be preserved. If the only barrier were the technical one that is so often mentioned, it would be trivial to overcome. One need only amend the statute to include a provision that transmission of a single copy is within the first sale privilege so long as the transmitter destroys his or her original copy. In fact, such language has been proposed.[31] An influential group representing copyright holders, which has been one of the White Paper's most ardent champions, dismissed the proposal without analysis as "completely unworkable and virtually impossible to enforce."[32]

Another central tenet of copyright law is the distinction between unprotected idea and protected expression. Copyright protects only the expression embodied in a work and not the ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries the work expresses.[33] In order to ensure that members of the public have access to the unprotected, underlying ideas, methods, and processes contained in protected works, courts have privileged reproduction of the protected expression when it is necessary in order reproduce or decipher the unprotected elements.[34] Critics of the White Paper have argued that while the amendments on the table don't threaten the idea/expression dichotomy in terms, they promise to make it irrelevant.[35] A proposed new section of the copyright law would encourage publishers to use technological means to make their works unreproduceable, and would impose penalties for the manufacture or sale of devices, or the provision of services, that defeat copy protection -- regardless of whether the users of such devices or services needed them to make copies that would have been privileged because of the idea/expression dichotomy.[36] While the public may continue to have a legal right to copy protected expression in order to decipher the ideas and facts it contains, the devices required to do so may be unobtainable. It would be easy enough to add language to the statute recognizing that the public has an affirmative right to gain access to, extract, use and reuse the ideas, facts, information and other public domain material embodied in protected works. That affirmative right should include a privilege to reproduce, adapt, transmit, perform or display so much of the protected expression as is required in order to gain access to the unprotected elements. Yet, so far, even lobbies that style themselves as public advocates have not proposed language to that effect.

Indeed, if it were merely a technicality that threatened the public's longstanding assurance that it may browse, view, watch, and read copyright works without seeking permission, we could resolve that problem easily. The basis for the argument that any appearance of a work in the random access memory of any computer anywhere constitutes an actionable reproduction is a handful of cases, arguably misreading the statutory language in the context of commercial disputes. In search of a handle for liability, these courts relied on the exclusive reproduction right as a catch-all right that captures every appearance of any digital work in the memory of a computer.[37] The authors of the White Paper seized on this interpretation as the correct one. They insist that it applies to private individuals as well as commercial actors.[38] It seems obvious, though, that that cannot be what Congress meant when it enacted the language back in 1976.[39] It seems equally clear that the problem is easy to repair. Ephemeral reproductions in volatile computer memory need not be deemed "copies" under the statute at all, and clarifying language to that effect would be straightforward.[40]

The crux of the dispute is not, of course, that we can't solve the technical problems that threaten to upset copyright law's longstanding balance between owners and users of protected material. The controversy instead reveals a deep division over whether the current balance struck by the law is the appropriate one.

iii. a more basic question

Current copyright stakeholders have their eyes on the size of their slices of pie. The question of what balance should be embodied in the copyright law is liable to get lost in the bickering. In the current scheme of things, it is nobody's job to look out for what "should" be the law.[41] But the question deserves to be asked more thoughtfully than the reflexive invocation it commonly receives as a prelude to an argument that the copyright law needs to be further clarified in the speaker's favor.[42] To determine what balance the copyright law should strike, we need to step back from seeking close analogues to activities and devices that current law deems lawful or infringing. Rather than diverting our attention with debates over whether personal computers are indeed akin to printing presses, or copyright protection devices mere siblings to automobile door locks, we need to ask more basic questions. Here is one: The essential balance embodied in the copyright law, which has been characterized variously by an assortment of actors, is a balance between giving copyright holders enough control over their works to permit them to exploit them commercially, and allowing the rest of the world sufficient access to those works to permit us all to read, see, listen to, use, reuse, learn from, and build on them, and thus promote the progress of Science and useful arts. The copyright laws we have relied on until now pegged the owner's control to reproduction, because that made functional sense. In a digital world, it may not. If we want a copyright law that balances copyright owners' control with public access in a way that enables all of us to use copyrighted works and to create new ones, are there ways to define the nature of that control and access that are more suitable for a digital age?

iv. current law and digital technology

For those who spend their hours interacting with digital media, a surprising consensus has begun to appear that the copyright law doesn't make much sense in the digital environment, because it is based on the model of a reproduction, or copy, as the essential compensable unit (that's why we call it a "copy"right law), and, in a digital medium, a copy no longer measures anything very useful. Supporters of more expansive copyright laws have begun to call for new rights to "access" and "use" protected works to supplement rights to make copies; supporters of more measured copyright laws have suggested the express recognition of privileges to "browse" and "transmit", even if they result in the creation of temporary copies. Those who post grave pronouncements on the Internet to the effect that copyright is dead rest much of their argument on the fact that reproduction in digital memory is a crucial element in the functioning of digital technology.[43]

If we could put aside the frightening question of what we might devise to replace the basic copyright right to reproduce a protected work in copies (and momentarily exclude from the room all the people who have invested substantial capital in becoming more expert than most in the ins, outs and arounds of the current system), we might find surprising agreement on the point that the basic reproductive unit no longer measures anything very important. What keeps us from recognizing that agreement is a longstanding polarization among communities interested in copyright, which leads each camp to distrust the other camps' agendas. Representatives of copyright holders, one suspects, will use any occasion as an opportunity to enhance their control over nearly all uses of their works. Representatives of schools and libraries, in contrast, might approach any proposal as an opportunity to enlarge the free use zone they exploit without paying authors and publishers their due. Certainly if one reads the rhetoric emerging from opposing camps, it supports this view of reality.[44] The rhetoric suggests that the habit of distrust among opposing interests in realm of copyright lobbying is too ingrained to fade easily or soon.

Nonetheless, the group most drastically affected by the application of copyright law to the new digital technology is neither the publishers and their friends nor the libraries and their friends, but individual users making noncommercial, consumptive use of copyrighted works from their homes and offices. They have no formal alliances with any of the familiar stakeholders, although stakeholders have claimed to represent them for most of this century.[45] From the public's point of view, the most notable part of the copyright reinterpretation proposed by the White Paper is its insistence that rules that were drafted with the needs of commercial and institutional actors in mind, and that for 200 years applied principally to those actors, should henceforth control ordinary, private, noncommercial behavior as well.

Copyright law has always, officially, extended to all users of protected material rather than just commercial users. Even so, at least in the United States, copyright owners have rarely sought to enforce the law against individual end users. So long as the law, as a practical matter, constrains only copyright-intensive businesses and institutions who know that they need to hire copyright lawyers, it is unproblematic for the law to be arcane, specific, detailed, technical and counter-intuitive. Just as digital technology promises and threatens to permit any member of the public to act as her own publisher, it also promises and threatens to subject every member of the public to the provisions of a copyright law that was drafted by copyright lawyers with no attention to the question whether it could make any sense to the public at large, by which I mean folks who don't have and don't yet realize they need a copyright lawyer. Anyone who curls up in front of the fire for a cozy evening reading Title 17 of the United States Code will soon conclude that the provisions of the current law are unsuitable for that extension. If copyright rules are henceforth to apply to everyday, ordinary behavior, we need to reformulate those rules with that goal in mind. We need to make the rules much simpler. We need to gauge copyright infringement in different terms. Most fundamentally, I would argue, we need to fasten on some measure of a copyright holders' rights other than the familiar reproduction. The act of reproducing is no longer a useful proxy for the question whether a copyright owner's incentives have been injured, or even insulted. We need to consider alternatives to measuring copyright infringement in terms of unauthorized copies.

v. persistent public notions

There's another problem with merely extending a general rule against reproduction to proscribe every unlicensed appearance of a copyrighted work in the memory of any computer anywhere. That rule will strike the millions of individuals whose behavior it's intended to affect as nonsensical. Very little systematic research about the public's views of copyright has been conducted, because most of the entities with sizable financial investments in copyright-affected activities have already known what views they'd prefer the public to have, and have therefore skipped directly to the guidance and instruction portion of their agendas.[46] Members of the public, however, appear to have formed their own views, and those views have been resistant to guidance and instruction.[47] There is not much empirical evidence showing what the general American public believes copyright laws to say, but there is some.[48] That evidence indicates that people have fairly well-formed views about copyright, and that they are stubborn about hanging onto them. Most notably, people appear to believe that copyright laws make sense -- even when they don't. Sometimes, at least, people respond to copyright provisions that don't seem to make any sense by assuming that they can't really be the law.[49] In any event, such empirical evidence as I've seen indicates that, in the United States, there is a persistent sentiment that private, personal use of copyrighted works is outside of copyright law's boundaries. People insist that copyright law only covers commercial activities -- that non-profit or even consumptive private uses of copyrighted works are exempt from the law's reach.

People who assume that the folks who write laws try to make them make sense can be forgiven for supposing that copyright laws draw the lines where they draw them for good reason; and it is surely understandable that they believe that one of those lines separates non-commercial private activity from commercial uses. Non-commercial users are, after all, seldom sued. When they are sued, they frequently lack the resources to litigate, and simply roll over and play dead, generating no precedents for the casebooks. Those who find the resources to litigate often believe that they have compelling fair use arguments in their favor; sometimes they're right.

Implicit in most of the proposals on the table is that the public needs to be educated to understand that unlicensed individual, private, noncommercial use is and ought to be illegal in most cases. Ambitious educational programs have been proposed to persuade the public of the rightness of such a view.[50] To the extent that the public's views are deeply held, we should, I would argue, try to work with them rather than bludgeoning them into submission. Since most end users have, until now, been effectively immune from copyright liability -- either because the law privileges their uses of copyrighted works,[51] or because copyright owners chooses not to enforce their rights against individuals making private use of protected works, copyright holders lose little that they really own by shaping the rules that apply to individuals around existing expectations and copyright norms.

vi. a right of commercial exploitation

I suggest that we begin by asking whether we could design a workable copyright-like law that accords with public perceptions rather than contradicting them. One of the most persistent misimpressions the public has is that copyright law only covers commercial activities -- that non-profit or even private consumptive uses of copyrighted works are exempt from the law's reach. That has never been the law, but people believe it anyway. And, in fact, if you look only at how the law has been enforced over the past 200 years, it's a pretty good description of actual outcomes, since very few noncommercial actors have been worthwhile lawsuit targets -- lawsuits are expensive.

So, let's start there. If we are really trying to come up with a law that applies to the public at large, we could jettison the basic reproductive unit entirely, and recast the bundle of rights in a copyright as a right of commercial exploitation. (I concede that if copyright stops being about the right to make copies we might need to think up a different name for it.) Making money (or trying to) from someone else's work without permission would be infringement, as would large scale interference with the copyright holders' opportunities to do so.[52] That means that we would get rid of our current bundle-of-rights way of thinking about copyright infringement. We would stop asking whether somebody's actions resulted in the creation of a "material object[] . . . in which a work is fixed by any method now known or later developed,"[53] and ask instead what effect those actions had on the copyright holder's commercial exploitation.

One can't make a rule that's that general without relying on common-law lawmaking for a lot of embroidery. So one potential drawback of my proposal is that it would replace the bright lines in the current statute with a lot of uncertainty. The current set of statutory bright lines, through, while specific and detailed, are not particularly clear. The application of much of the statute's language to current activities is problematic.[54] The statute seems to make a variety of common, everyday, consumptive uses of copyrighted material illegal, but everyone knows that there is an undefined and largely unacknowledged free zone of people like your next-door neighbor who duplicates his wife's authorized copy of Windows 95® rather than buying his own from the computer store. Your neighbor's behavior is technically infringing and very, very common. He is not at all likely to find himself the target of an infringement suit. It's not clear what a court would do with such a suit if it got one.[55] I'm not at all sure that the existence of an unenforced and possibly unenforceable rule making common, everyday behavior illegal is much use to anyone, but, in any event, it's hard to argue that the lines currently drawn by the statutory language are either bright or predictable in their application to real world activities. So we wouldn't lose much in the way of predictability or clarity by trading in the current detailed rules for a more general standard.

Moreover, the common law interpretive process, with all its faults, is better suited to discover privileges and limitations of general application than the usual copyright legislative process. Instead of relying on industry actors to craft workable bargains, it tries to draw lines that make sense.[56] Sometimes those lines may not work, but some of the current statutory lines don't work very well either. The public is more likely to be accepting of lines that are drawn by drafters attempting to make sense. And the public's involvement, through the jury process, in drawing those lines may -- just may -- give us an opportunity for expressing popular norms in where those lines end up.

Finally, and the thing I probably like best about this proposal, is that if we abolish all of the detailed, specific exceptions that we now have, the industries who have been able to rely on them will need to rely on the same general limitations that everyone else is relegated to. When established copyright companies tell us, as they always do, that they are both copyright owners and copyright users, so they are interested in a copyright law that is balanced,[57] they omit to mention that unlike users, and unlike new start-up companies, and unlike small businesses who have no copyright lobbyists, they had the clout to negotiate and get Congress to enact some detailed copyright exemptions. Those exemptions, typically, give them what they need, but are narrow enough that they are unlikely to prove useful to new competing media that might show up next year. I like the idea of harnessing all of that energy to devote to litigation designed to generate privileges that could be useful to the general public.

A variety of other new models might serve us as well. What is crucial, though, is that we recognize that our intellectual property laws form the basic legal infrastructure for our information policy in an online world. Interests that currently dominate intellectual property law would be delighted for our information policy to emerge as a byproduct of our intellectual property laws; that strategy is likely to leave them holding winning hands. Before we allow our intellectual property laws to dictate the terms of our information policy, though, we need to figure out whether the world that is likely to result is somewhere we really want to live. We cannot have an information policy that effectively promotes public access for the greatest number of people to the widest range of information unless our intellectual property laws give more than lip-service to the goal of public access.

Much of the control over access and use that current copyright laws give to copyright holders came to them not because of a Congressional decision to enhance the copyright bundle-of-rights, but as accidental windfall benefits resulting from linguistic fortuity and technological change.[58] The unintended beneficiaries of these windfalls are understandably reluctant to relinquish them. Their success in retaining control until now over these new rights and new uses has persuaded many copyright holders that their destiny is to appropriate whatever surplus progress delivers in connection with the exploitation of copyrighted works. Suggestions that some of this surplus belongs to the public have recently been met with the objection that such a claim demands that copyright owners alone bear the burden of facilitating public access to works of authorship.[59] Any copyright historian would reply that such an objection misperceives the nature of copyright, since copyright owners have never been entitled to control all uses of their works -- or even most of them. But even if the envoys of copyright holders had history on their side, it would be a mistake for the rest of us to allow the policy debate to proceed on those terms.

It may once have been the case that giving copyright owners the legal right to sue over any use of copyrighted works they could detect and prevent was an effective method to promote creation, distribution, access, use, reuse and learning. That doesn't matter now. The question we need to concern ourselves with now is the degree to which that is an effective means today. We can't answer that question without identifying the needs of readers as well as writers, of listeners and players as well as composers, of learners as well as publishers and teachers. We are well on the way to adopting an information policy that is a byproduct of our copyright laws. I suggest that we need to do it the other way around.


[1] See, e.g., David Rothman, Teleread Home Page, URL:; David Lange, At Play in the Fields of the Word: Copyright and the Construction of Authorship in the Post Literate Millennium, 55 Law & Contemp. Probs. 185 (Spring 1992); Ethan Katsch, LAW IN A DIGITAL WORLD (1995). See also, e.g., William Gibson, NEUROMANCER (1984) (science fiction).

[2] See, e.g., William Cook, Be Wary of Internet Casting Shadows on Copyright Holders, Chicago Lawyer, April, 1996, at 60; Copyright Protection on the Internet: Hearing on H.R. 2441 Before the Courts and Intellectual Property Subcomm. of the House Comm. on the Judiciary, 104th Cong, 2d Sess. (Feb. 7, 1996) (Testimony of Edward P. Murphy, National Music Publishers' Association [Available on LEXIS, NEWS Library, SCRIPT file; also at URL:].

[3] See, e.g., NII Copyright Protection Act of 1995: Hearing on H.R. 2441 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 2d Sess. (Feb. 8, 1996) (statement of Barbara A. Munder, Information Industry Association) [available on LEXIS, NEWS library, SCRIPT file].See also NII Copyright Protection Act of 1995: Joint Hearing on H.R. 2441 and S. 1284 Before The Subcomm. on Courts and Intellectual Property of the House Judiciary Comm. and the Senate Judiciary Comm., 104th Cong., 1st Sess. (Nov. 15, 1995) (statement of Mihaly Ficsor, W.I.P.O) [available on LEXIS, NEWS library, SCRIPT file).

[4] See, e.g., Statement on Behalf of The American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association and the Special Library Association on H.R. 2441: The NII Copyright Protection Act of 1995: Hearing Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong, 2d Sess. (Feb. 8, 1996) [available at URL:]; September 22, 1994 Public Hearing at Andrew Mellon Auditorium Before the Information Infrastructure Task Force Working Group on Intellectual Property Rights 62-64 (testimony of Lucretia McClure, Medical Libraries Association); February 8, 1996 House Hearing, supra note 3, at __ (testimony of Jeanne Hurley Simon, U.S. National Commission on Libraries and Information Science).

I don't exempt myself from this criticism. I have made the same sort of balance arguments in opposition to pending legislation, see, e.g., Sept. 22, 1994 IITF Hearing, supra, at 66-67 (testimony of Jessica Litman). Indeed, as a member of the steering committee of the Digital Future Coalition, I have helped to frame arguments that cast the dispute in these terms.

[5] This criticism is explored more fully in James Boyle, Overregulating the Internet, Washington Times, Nov. 14, 1995, at A17 ; Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Entertainment L.J. 27 (1994); Pamela Samuelson, The Copyright Grab, Wired 4.01, January, 1996, at 134.

[6] See, e.g., Creative Incentive Coalition HomePage,; Digital Future Coalition home page,; Home Recording Rights Coalition home page,; Jon Newcomb, Rants & Raves: The Copyright Grab Bag, Wired 4.04, April, 1996 at 30 (letter to the editor from the President of Simon and Schuster).


[8] S. 1284, 104th Cong., 1st Sess. (1995); H.R. 2441, 104th Cong., 1st Sess. (1995).

[9] November 15, 1995 Joint Hearing, supra note 3, at __ (testimony of Mihaly Ficsor, WIPO); February 7, 1996 House Hearing, supra note 2, at __ (testimony of Ed Black, Computer and Communications Industry Assn.); National Information Infrastructure: Hearing on S. 1284 Before the Senate Judiciary Comm., 104th Cong., 2d Sess. (May 7, 1996) (testimony of Robert Oakley, Digital Future Coalition) (Available on LEXIS, NEWS library, SCRIPT file).


[11] See, e.g., September 23, 1994 Public Hearing at Andrew Mellon Auditorium Before the Information Infrastructure Task Force Working Group on Intellectual Property Rights 4-7 (testimony of Steven J. Metalitz, Information Industry Association).

[12] See White Paper, supra note 7, at 64-100; November 15, 1995 Joint Hearing, supra note 3, at __ (testimony of Bruce Lehman, Commissioner of Patents). The Commissioner has conceded that the elusive privilege of fair use would continue to be available in appropriate cases. The White Paper, however, both interprets fair use very narrowly, and suggests that the development of technological tracking and licensing systems will reduce the scope of the fair use privilege online. See White Paper, supra note 7, at 73-82.

[13] See, e.g., February 8, 1996 House Hearing, supra note 3, at __ (statement of Barbara A. Munder, Information Industry Association); White Paper, supra note 7, at 64-66.

[14] See White Paper, supra note 7, at 92-95; May 7, 1996 Senate Hearings, supra note 9, at __ (testimony of Kenneth Kay, Creative Incentive Coalition).

[15] See November 15, 1995 Joint Hearing, supra note 3, at __ (testimony of Bruce Lehman, Commissioner of Patents); February 7, 1996 House Hearing, supra note 2, at __ (testimony of Frances Preston, BMI).

[16] See, e.g., May 7, 1996 Senate Hearing, supra note 9, at __ (testimony of John Bettis, ASCAP); id. at __ (testimony of Dan Burton, Novell).

[17] See, e.g., James Boyle, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 135-39 (1996); J. David Loundy, Bill to Amend Copyright Act Needs Work, Chicago Daily Law Bulletin, October 12, 1995, at 6; Pamela Samuelson, Legally Speaking: The NII Intellectual Property Report, 37 Communications of the ACM, December 1994, at 12.

[18] See Boyle, supra note 5, at A17; Leslie A. Kurtz, Copyright and the National Information Infrastructure in the United States, 18 Eur. Intell. Prop. Rev. 120 (1996); Pamela Samuelson, supra note 5, at 137; Diane Leenheer Zimmerman, Copyright in Cyberspace: Don't Throw Out the Public Interest with the Bath Water, 1994 Ann. Surv. Am. L. 403.

[19] See Jessica Litman, Revising Copyright Law for the Information Age, 75 Or. L. Rev. __, __ (1996); Litman, supra note 5.

[20] See, e.g., February 8, 1996 House Hearing, supra note 3, at __ (statement of Barbara A. Munder, Information Industry Association).

[21] This analysis is documented in detail in Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275 (1989), and Jessica Litman, Copyright, Compromise and Legislative History, 72 Cornell L. Rev. 877 (1987).

[22] 17 U.S.C. SS 108.

[23] See 17 U.S.C. SSSS 110 (1), (2), 112(b).

[24] See H.R. Rep No. 1476, 94th Cong., 2d Sess. 66-72 (1976)

[25] See generally Litman, Copyright Legislation and Technological Change, supra note .

[26] See Nov. 15, 1995 Joint Hearing, supra note 3, at __ (testimony of Bruce Lehman, Commissioner of Patents)

[27] See, e.g., Feb. 8, 1996 House Hearing, supra note 3, (testimony of Jeanne Hurley Simon, U.S. National Commission on Libraries and Information Science); Feb. 7, 1996 House Hearing, supra note 2, (testimony of Edward Black, Computer & Communications Industry Association).

[28] See, e.g., Harrison v. Maynard, Merril & Co., 61 F. 689 (2d Cir. 1894).

[29] As enacted in 1976, the first sale doctrine codified in 17 U.S.C. SS 109 privileged rentals as well as other transfers of possession. In response to complaints from the record and software industry that rental of their works facilitated infringing reproduction on a broad scale, Congress enacted the Record Rental Amendments of 1984, Pub. L. No. 98-450, 98 Stat. 1727 (1984), and the Computer Software Rental Amendments Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5134 SSSS 801-804. See Jessica Litman, Copyright and Information Policy, 55 Law & Contemp. Probs. 185, 188-89 (Spring, 1992). The current version of section 109 restricts commercial rental of phonorecords and software, but not of other works.

[30] Sept. 23, 1994 IITF Hearing, supra note 11, at 8-11 (testimony of Paul Aiken, Authors League of America). See, e.g., September 22, 1994 IITF Hearing, supra note 4, at 48-49 (testimony of Ann Harkins, Creative Incentive Coalition); White Paper, supra note 7, at 92-94.

[31] The Digital Future Coalition proposed that the following text be added to section 109:

The privilege set forth in subsection (a) extends to any transmission of a single copy or phonorecord so long as the transmitter erases or destroys his or her copy or phonorecord at substantially the same time. The reproduction of a work, to the extent required to exercise this privilege, is not an infringement.

May 7, 1996 Senate Hearing, supra note 9, at __ (testimony of Robert Oakley, Digital Future Coalition).

[32] See May 7 Senate Hearing, supra note 9, at __ (testimony of Kenneth R. Kay, Creative Incentive Coalition). It seems difficult to understand why the proposal would be any harder to enforce than a privilege to transmit works whenever the fair use doctrine would permit the transmission, something Mr. Kay insisted that the proposed amendments would in no way restrict. See id. at __.

[33] 17 U.S.C. SS 102(b).

[34] E.g., Baker v. Selden, 101 U.S. 99 (1879); Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993); Atari Games, Inc. v. Nintendo of America, 975 F. 2d 832 (Fed. Cir. 1992).

[35] See, e.g., Pamela Samuelson, Technological Protection for Copyrighted Works, 45 Emory L.J. __ (forthcoming, 1996).

[36] The Creative Incentive Coalition recently joined the chorus of copyright owner lobbies that have requested that circumvention of copyright protection technology be a crime. See May 7, 1996 Senate Hearing, supra note 9, at __ (testimony of Kenneth R. Kay, Creative Incentive Coalition); see also Feb 7 House Hearing, supra note 2, at __ (testimony of Barbara Munder, Information Industry Association); id at __ (testimony of Jack Valenti, Motion Picture Association of America).

[37] See MAI Systems Corp v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Systems Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390 (N.D. Cal.), aff'd in relevant part, 1995 U.S. App. LEXIS 24426 (9th Cir.), cert. denied, 116 S. Ct. 1015 (1996); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D.Va 1994). The opinions have been widely criticized. See, e.g., Samuelson, supra note 17.

[38] See White Paper, supra note 7, at 64-66.

[39] See Litman, supra note 5, at 40-43.

[40] Congress could add the following sentence to the definition of copy in 17 U.S.C. SS 101:

"The ephemeral reproduction of a work in computer memory or temporary digital storage is not a copy."

Alternatively, Congress could add a new statutory provision giving members of the public a privilege to make ephemeral copies. See Litman, supra note 19.

[41] For a discussion of why this doesn't seem to be Congress's job, see Litman, supra note 5, at 53-54 (1994). For a discussion of what such an inquiry might look like see Litman, supra note 19.

[42] See e.g., February 8, 1996 House Hearing, supra note 3, at __ (testimony of Richard Robinson, Association of American Publishers).

[43] See, e.g., John Perry Barlow, The Economy of Ideas: A framework for rethinking patents and copyrights in the Digital Age (Everything you know about intellectual property is wrong), Wired, March, 1994, at 84.

[44] See, e.g., February 7, 1996 House Hearing, supra note 2, at __ (testimony of Barbara A. Munder. Information Industry Assn.); May 7, 1996 Senate Hearing, supra note 9, at __ (testimony of Kenneth R. Kay, Creative Incentive Coalition); David Rothman, Teleread Update #6: Copyright Czar Threatens to "Destroy" Law Professor, URL:

[45] See Litman, Copyright Legislation and Technological Change, supra note 21, at 311-316; September 22, 1994 IITF Hearing, supra note 4, at 66-67 (testimony of Jessica Litman, Wayne State University).

[46] See, e.g., Sept 16, 1994 Public Hearing at U.C.L.A. Before the Information Infrastructure Task Force Working Group on Intellectual Property Rights 14-16 (1994) (testimony of Robert Simons, Dialog Information Services); Sept 23, 1994 IITF Hearing, supra note 11, at 17-18 (testimony of Heather Florence, Bantam, Doubleday, Dell); Sept 22, 1994 IITF Hearing, supra note 4, at 49-50 (testimony of Ann Harkins, Creative Incentive Coalition); White Paper, supra note 7, at 201-10.

[47] See Litman, supra note 5.

[48] See Office of Technology Assessment, U.S. Congress, COPYRIGHT & HOME COPYING: TECHNOLOGY CHALLENGES THE LAW 163-65 (1989); Office of Technology Assessment, U.S. Congress, INTELLECTUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND INFORMATION 121-23, 208-09 (1986); The Policy Planning Group, Yankelovich, Skelly & White, Inc., Public Perceptions of the "Intellectual Property Rights" Issue (1985) (OTA Contractor Report).

[49] See Jessica Litman, Copyright Noncompliance (or why we can't "Just say yes" to licensing), __ N.Y.U. J. Int'l L. & Pol. __ (forthcoming, 1996)

[50] See White Paper, supra note 7, at 203-10.

[51] See, e.g., Sony v. Universal City Studios, 464 US 417 (1984); 17 U.S.C. SS 1008.

[52] What I mean by "large scale interference" is the sort of routine free use of educational materials by educational institutions, for example, that essentially vitiates copyright holders' commercial opportunities in substantial portions of their markets. We need some sort of exception of this ilk in order to avoid completely destroying the markets for works, such as textbooks, that are marketed primarily to non-commercial actors. At the same time, I would distinguish the sort of behavior that does not itself work a large-scale interference, but that might be argued to threaten one if it became widespread, like the computer bulletin board run by David LaMacchia, see U.S. v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994). While it may be the case that hundreds of bulletin boards like David LaMacchia's, if aggregated, might represent a large interference, there's no good reason to impose liability for the aggregate on Mr. LaMacchia. Common small scale interference with commercial opportunities should not be actionable under this standard.

[53] See 17 U.S.C. SS 101.

[54] See, e.g., Barlow, supra note 43; Litman, Copyright Legislation and Technological Change, supra note 21, at 342-356.

[55] The mostly nearly analogous case is Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). In addition to suing the manufacturers, distributors and retailers of video tape recorders, plaintiff motion picture studios joined an individual VCR user as a defendant, although without any intention of seeking to collect infringement damages from him. See James Lardner, Annals of Law: The Betamax Case -- 1: New Yorker, April 6, 1987 at 45. Ultimately, the Supreme Court held that individuals' home videotaping was fair use.

[56] Common law adjudication is responsible for the general privileges discussed earlier: the first sale doctrine and the idea/expression distinction, as well as for the privilege of fair use. See generally Litman, Copyright Legislation and Technological Change, supra note 21, at 332-42.

[57] See, e.g., Public Hearing on Intellectual Property Issues Involved in the National Information Infrastructure Initiative Before the National Information Infrastructure Task Force Working Group on Intellectual Property 31 (November 18, 1993) (testimony of Stephen L. Haynes, West Publishing Co.); Feb. 8, 1996 House Hearing, supra note 3, at (prepared statement of the Association of American Publishers); May 7, 1996 Senate Hearing, supra note 9, at (testimony of Dan Burton, Novell); September 16, 1994 Public Hearing at U.C.L.A. Before the Information Infrastructure Task Force Working Group on Intellectual Property 22 (testimony of William Barlow, Times-Mirror Company).

[58] See Litman, supra note 29, at 206; Litman, supra note 5, at 39-43.

[59] See, e.g., Feb. 7, 1996 House Hearing, supra note 2, at __ (testimony of Barbara A. Munder, Information Industry Association):

The question of what constitutes fair use of the creator's exclusive rights is always an area of contention when copyright revisions are considered by Congress. No one -- least of all those of us in the business of providing information -- wants our society to devolve into segmented classes of information "haves" and "have-nots." However, ensuring that those who cannot afford to pay for information nevertheless have access to it is a broader societal responsibility, not one that should be borne primarily -- let alone exclusively -- by copyright owners.

In IIA's view, the current, vociferous push toward expanding fair use is little more than an attempt to create a new set of "user rights" that would place the burden of facilitating universal access to information resources solely on the shoulders of copyright owners. The fair use doctrine was never designed to carry this burden. I would point out that the White Paper addressed the issue of fair use with some thoroughness and emphatically rejected this approach.

It would be counterproductive to place information providers alone in a category with special obligations to fulfill an overall societal need. The building of our national highway system did not translate into demands or expectations that automobile manufacturers suddenly provide free cars to the underprivileged. Neither should content providers -- if you will, the manufacturers of vehicles for the information superhighway -be required to bear the sole burden of providing information for free to the general public. Broad expansion of the current, workable fair use exceptions would decrease return on investment for information providers and would thereby diminish the incentive for the creation and distribution of the type of quality content products and services that online customers are demanding. In the end, there will be less, not more, information for all.

See also White Paper, supra note 7, at 84 ("The Working Group rejects the notion that copyright owners should be taxed -- apart from all others -- to facilitate the legitimate goal of 'universal access.'")