Our current copyright law is based on a model devised for print media, and expanded with some difficulty to embrace a world that includes live, filmed and taped performances, broadcast media, and, most recently, digital media. That much is uncontroversial. The suitability of that model for new media is much more controversial. As one might expect, to the extent that current legal rules make some parties "haves" and others "have-nots," the haves are fans of the current model, while today's have-nots suggest that some other model might be more appropriate for the future. Meanwhile, copyright lawyers, who, after all, make their livings interpreting and applying this long and complex body of counterintuitive, bewildering rules, insist that the current model is very close to the platonic ideal, and should under no circumstances be jettisoned in favor of some untried and untrue replacement.
The Clinton Administration's Information Infrastructure Task Force has recently waded into the quagmire with a report entitled Intellectual Property and the National Information Infrastructure that seeks to have it both ways. The White Paper concludes that so long as the meaning of the current copyright law, and the way that law should be read to apply to new technology, is clarified, then the current law is "fundamentally adequate and effective." The White Paper, therefore, takes on the task of interpreting current law to resolve any ambiguities that might arise in the context of new technology. Using the tools that all lawyers use when engaged in such tasks, the White Paper carefully explains that just about every ambiguity one can imagine, properly understood, should under the best view of current law be resolved in favor of the copyright holder.
That leads the authors of the White Paper to some pretty startling conclusions. Most notably, since any use of a computer to view, read, reread, hear or otherwise experience a work in digital form requires reproducing that work in a computer's memory, and since the copyright statute gives the copyright holder exclusive control over reproductions, everybody needs to have either a statutory privilege or the copyright holder's permission to view, read, reread, hear or otherwise experience a digital work, each time she does so. Not only individuals, but their Internet service providers and the proprietors of any computers that assist in the transfer of files are, and should be, liable for copyright infringement in these cases, regardless of whether they know someone's intellectual property rights are being invaded, or even what content is moving through their equipment. Once it is understood that current copyright law in fact so provides, the White Paper argues, there is little need to amend it to make express provision for new technology; only minor adjustments will be required. Thus, the White Paper neatly avoids addressing the policy question whether copyright should be defined in terms that convert individual users' reading of files into potentially infringing acts, by insisting that Congress chose to set it up this way when it enacted the current law.
I am sometimes a legislative historian, and the contours of this dispute don't look very different from the shape of very similar disputes that arose in the 1980s, when the gods invented personal computers; or in the 1970s, when they invented videocassette recorders; or the 1960s, when they invented cable television; or the 1920s, when they invented commercial broadcasting and talkies. Arguing that Congress already considered a question, and resolved it in one's favor then, is a common tactic in the history of copyright lobbying, because it bypasses the problem of persuading Congress to consider the question and resolve it in one's favor today. Sometimes it works; other times it fails. In evaluating these claims, it is always useful to inject a note of realism: would Congress have adopted such-and-such language if it believed at the time the legislation was enacted that this language would be interpreted to mean what is now being claimed? Whether a platonic Congress would have made that call or not, in view of what we now know about how the world has evolved, is that choice a good one, in policy terms? People are going to differ on the answers to both of those questions, but at least their differences are on the table; we aren't making information policy by sleight-of-hand.
Until now, our copyright law has been addressed primarily to commercial and institutional actors who participated in copyright-related businesses. The statute seems on its face to have been drafted primarily for the benefit of people with ready access to copyright counsel. It is long, complicated, counterintuitive and highly specific. It has very few words to say to the non-commercial, non-institutional user interacting with copyrighted works in his or her private capacity. What it does say seems to boil down to this:
The copyright owner has some very broad exclusive rights. Those rights have never extended to private performances or displays, or to resale of copies of works, but they do include command over reproduction, adaptation, distribution, public performance or display. All of those rights are subject to a host of explicit exceptions, but none of those exceptions applies to you.
How can this be? It results from the process we rely on to write our copyright laws. The current federal copyright statute (and its predecessors) were composed by representatives of copyright-related industries to govern interactions among them. We have built into the process a mechanism for the cable television industry, or the software publishers' association, or the manufacturers of digital audio tape to insist that the law include a provision privileging this or that use that that party deems essential. We have never had a mechanism for members of the general public to exert influence on the drafting process to ensure that the statute does not unduly burden private, non-commercial, consumptive use of copyrighted works: The design of the drafting process (in which players with major economic stakes in the copyright sphere are typically invited to sit down and work out their differences before involving members of Congress in any new legislation) excludes ordinary citizens from the negotiating table.
For that reason, it should be unsurprising that many members of the public believe that copyright law simply doesn't apply to ordinary folks making non-commercial use of copyrighted works. It should also be unsurprising that many copyright holders insist that current copyright law applies to everyone as literally written; there are no privileges or exemptions for the public because it would be inappropriate for members of the public to have them.
Most of the current proposals for interpreting or amending copyright law to apply it to digital technology have come from copyright holders or their defenders. They appear to contemplate that the law will henceforth govern all activities of anyone who uses digital media in any capacity. The suggested application of copyright law to digital media potentially affects, indeed prohibits, most common everyday ways one can use a computer or other digital device to read, view, hear or otherwise experience copyrighted works. Under one controversial view of the copyright statute, most of the activity that takes place over the Internet, and much of the activity that takes place in individuals' homes when they turn on their computers, cannot lawfully be engaged in without the authorization of the copyright owner in the material they see hear, read, listen to or view. It is that view of the law that the Clinton Administration's Information Infrastructure Task Force has gotten behind.
I have argued elsewhere that a lot of what is in the Working Group's White Paper is disingenuous and much of the rest of it is simply wrong. I won't rehearse those arguments here. I do think, however, the Working Group can be accused of not taking sufficiently seriously its assignment to consider whether the copyright law should be revised, and if so, how; it got caught up in the politics of its situation, and spent its energies trying to ensure that all current stakeholders and potential campaign contributors would be better off under the administration's proposals than they were under the status quo. I propose to give the question more serious consideration.
One way to do that is to make the new rules as much like the old rules as possible. Current copyright holders and the industries they do business with are already set up to operate under those rules: they have form agreements and licensing agencies and customary royalties in place. There are other advantages in using old rules: if we treat the hypertext version of the New York Times as if it were a print newspaper, then we have about 200 years worth of rules to tell us how to handle it. We can avoid the problems that accompany writing new rules, or teaching them to the people (copyright lawyers, judges, newspaper publishers) who need to learn them.
Using old rules, however, has the obvious disadvantage that the rules will not necessarily fit the current situation very well. Where the new sorts of works behave differently from the old sorts of works, we need to figure out some sort of fix. Here's a simple example: Newsstands turn out to be an effective way of marketing literary works in part because it is difficult as a practical matter to make and distribute additional copies of newspapers and magazines that one buys from the newsstand. If one "buys" a newspaper by downloading it from the World Wide Web, on the other hand, it is pretty easy to make as many copies as one wants. The old rules, customs and practices, therefore, will not work very well unless we can come up with a way to prevent most of those copies from getting made. Relying on old rules encourages us to solve the problem that the World Wide Web is not like a newsstand by disabling some of its un-newsstand-like qualities. We could enact rules requiring the proprietors of web pages to set them up to behave much more like newsstands; we could demand that they insert code in each of their documents that would prevent downloading or would degrade any downloaded copies; we could require modem manufacturers to install chips that disabled the transfer of digital data unless some credit card were charged first.
But would we really want to do that? Adopting rules that disable new technology is unlikely to work in the long term, and unlikely to be a good policy choice if it does work. We have tried before to enact laws that erect barriers to emerging technology in order, for policy reasons, to protect extant technology. The FCC did precisely that when it regulated cable television to the point of strangulation in order to preserve free broadcast TV. That particular exercise didn't work for very long. Others have been more successful. Direct broadcast satellite television is still not widely available in the U.S., and no small part of the reason is that our current legal infrastructure makes it much more difficult for direct satellite broadcasters than for cable operators or conventional broadcasters.
If our goal in reforming current law were to make things more difficult for emerging technology, in order to protect current market leaders against potential competition from purveyors of new media, then cleaving to old rules would be a satisfactory, if temporary, solution. Adhering to old rules might distort the marketplace for new technology for at least the short term (since that, after all, would be one of its purposes), which might influence how that technology developed in the longer term, which, in turn, might influence whether and how the affected industries would compete in the markets for those technologies in the future. It would probably delay the moment at which the current generation of dominant players in information and entertainment markets were succeeded by a new generation of dominant players in different information and entertainment markets.
Why would a copyright exemption promote development? Conventional wisdom tells us that, without the incentives provided by copyright, entrepreneurs will refuse to invest in new media. History tells us that they do invest without paying attention to conventional wisdom. A variety of new media flourished and became remunerative when people invested in producing and distributing them first, and sorted out how they were going to protect their intellectual property rights only after they had found their market. Apparently, many entrepreneurs conclude that if something is valuable, a way will be found to charge for it, so they concentrate on getting market share first, and worry about profits -- and the rules for making them -- later. In addition, by freeing content providers from well-established rules and customary practices, a copyright shelter allows new players to enter the game. The new players have no vested interest -- yet -- so they are willing to take more risks in the hope of procuring one. They end up exploring different ways of charging for value. Radio and television broadcast signals are given to their recipients for free; -- broadcasters have figured out that they can collect money based on the number and demographics of their audiences. Many valuable software programs obtained their awesome market share by being passed on to consumers at no extra cost (like Windows 3.1® and DOS®) or deliberately given away as freeware (like Netscape® or Eudora®). Other software programs may well have achieved their dominant market position in part by being illicitly copied by unlicensed users (WordPerfect® comes to mind). Indeed, industry observers agree that at least half of all of the copies of software out there are unauthorized, yet the software market is booming; it is the pride of the U.S. Commerce Department. Perhaps all of the unauthorized copies are part of the reason why.
Our hypothetical benevolent despot, then, might propose a temporary period during which the Internet could be a copyright-free zone. Nobody seems to be making that sort of proposal these days, so perhaps I am mistaken about what a wise ruler would view as good policy. Or perhaps all the benevolent despots in the neighborhood are off duty, on vacation, or just simply hiding. Perhaps they've sought alternative employment. Where might one find a benevolent despot if one wanted to ask questions about wise copyright policy? Conventionally, one might expect some government entity to take that approach. The generalist federal government entities, though -- Congress and the White House -- have historically been neither expert nor interested in copyright. The specialist agencies with copyright expertise include the Register of Copyrights in the Library of Congress and, new with the current administration, the Patent and Trademark Office. The Register of Copyrights has a tradition of extreme caution in taking policy roles. For most of its history, the Copyright Office has played the role of go-between, translator and emissary between copyright industries and Congress. The Patent and Trademark Office, historically uninterested in copyright, has recently taken on an active policy role. The Commissioner's work product on these issues, however, suggests that his office is entirely in thrall to a constituency of current stakeholders.
A number of alternative viewpoints are possible: I'd like to focus on a third. Copyright is said to be a bargain between the public and copyright holders. So far, I, and the stakeholders and government bodies I have described have focused on the copyright holder's side of that bargain. Copyright owners, however, have never been entitled to control all uses of their works. Instead, Congress has accorded copyright owners some exclusive rights, and reserved other rights to the general public. Commonly, copyright theorists assess the copyright bargain by asking whether it provides sufficient incentives to prospective copyright owners. Indeed, it is conventional to argue that copyright holders should receive only such incentives as are necessary to impel them to create and disseminate new works. That analysis is less than helpful, though, as appears when one tries to quantify the degree to which incentives are required. The questions "How many people who do not currently compose symphonic music would do so if symphonic music paid better?" and "How many current composers would write more stuff if there were more money in it?" turn out to be imponderable and untestable. Common experience tells us that the unpredictability of proceeds that will flow from any particular copyrighted work make a quantitative measure of the copyright incentive a poor gauge of what authors will create, or even what investors will invest in the exploitation of works protected by copyright. Economists tell us nonetheless that, at the margin, there is always an author who will be persuaded by a slight additional incentive to create another work, or who will be deterred from creating a particular work by a diminution in the copyright bundle of rights. If we rely on the simple economic model, we are led to the conclusion that every enhancement of the rights in the copyright bundle is necessary to encourage the creation of some work of authorship.
Asking "what should copyright holders receive from this bargain? What do they need? What do they deserve?", then, may be less than helpful. We might instead look at the other side of the equation, and ask "What is it the public should get from the copyright bargain? What does the public need, want, or deserve?" The public should expect the creation of more works, of course, but what is it that we want the public to be able to do with those works?
The constitutional language from which Congress's copyright enactments flow describes copyright's purpose as "[t]o Promote the Progress of Science and useful Arts." We can begin with the assertion that the public is entitled to expect access to the works that copyright inspires. That assertion turns out to be controversial. Public access is surely not necessary to the progress of science. Scientists can build on each others' achievements in relative secrecy. Literature may flourish when authors have the words of other authors to fertilize their own imaginations, but literature may thrive as well when each author needs to devise her own way of wording. If we measure the progress of science by the profits of scientists, secrecy may greatly enhance the achievements we find.
Still, if valuable works of authorship were optimally to be kept secret, there would be no need for incentives in the copyright mold of exclusive rights. Authors could rely on self-help to maintain exclusive control of their works. Copyright makes sense as an incentive if its purpose is to encourage the dissemination of works, in order to promote public access to them. It trades a property-like set of rights precisely to encourage the holders of protectable works to forgo access restrictions in aid of self-help. For much of this country's history, public dissemination was, except in very limited circumstances, a condition of copyright protection. While no longer a condition, it is still fair to describe it as a goal of copyright protection.
But why is it that we want to encourage dissemination? What is it we want the public to be able to do with these works that we are bribing authors to create and make publicly available? We want the public to be able to read them, view them and listen to them. We want members of the public to be able to learn from them: to extract facts and ideas from them, to make them their own, and to be able to build on them. That answer leads us to this question: how can we define the compensable units in which we reckon copyright protection to provide incentives (and, since the question of how much incentive turns out to be circular, let's not worry about that for now) for creation and dissemination, while preserving the public's opportunities to read, view, listen to, learn from and build on copyrighted works?
In 1790, Congress struck this balance by limiting the compensable events within the copyright owner's bundle of rights to printing, reprinting, publishing and vending copyrighted works. (That translates, in current lingo, into an exclusive right to make, distribute and sell "copies.") Public performances, translations, adaptations, and displays were all beyond the copyright owner's control. Courts' constructions of the statute supplied further limitations on the copyright owner's rights: The statutory right to vend was limited by the first sale doctrine; the statutory right to print and reprint did not apply to translations and adaptations, did not prevent others from using the ideas, methods or systems expressed in the protected works, and, in any event, yielded to a privilege to make fair use of copyrighted works.
Congress, over the years, expanded the duration and scope of copyright to encompass a wider ambit of reproduction, as well as translation and adaptation, public for-profit performance, and then public performance and display. It balanced the new rights with new privileges: Jukebox operators, for example, enjoyed an exemption from liability for public performance for more than fifty years, and were the beneficiaries of a compulsory license for another decade after that. Other compulsory licenses went to record companies, cable television systems, satellite carriers and noncommercial television. Broadcasters received exemptions permitting them to make "ephemeral recordings" of material to facilitate its broadcast; manufacturers of useful articles embodying copyrighted works received a flat exemption from the reproduction and distribution rights to permit them to advertise their wares. Libraries received the benefit of extensive privileges to duplicate copyrighted works in particular situations. Schools got an express privilege to perform copyrighted works publicly in class; music stores got an express privilege to perform music publicly in their stores; and small restaurants got an express privilege to perform broadcasts publicly in their restaurants. Congress did not incorporate specific exemptions for the general population in most of these enactments because nobody showed up to ask for them. At no time, however, did Congress or the courts cede to copyright owners control over looking at, listening to, learning from or using copyrighted works.
The right "to reproduce the copyrighted work" is commonly termed the fundamental copyright right. The control over the making of copies is, after all, why this species of intellectual property is called a copyright. So it is tempting, and easy, to view the proliferation of copying technology as threatening copyright at its core. However we revise the copyright law, many argue, we need to ensure that the copyright owner's control over the making of every single copy of the work remains secure. This is especially true, the argument continues, where the copies are digitally created and therefore potentially perfect substitutes for the original.
Copyright holders have long sought to back up their legal control over reproduction with functional control. In the 1970s, copyright owners sought without success to prohibit the sale of videocassette recorders. In the 1980s, copyright owners succeeded in securing a legal prohibition on rental of records or computer software to forestall, it was said, the unauthorized copying that such rental was likely to inspire. In the 1990s, copyright owners and users groups compromised on the adoption of the Audio Home Recording Act, which, for the first time, required that recording devices be technologically equipped to prevent serial copying. The White Paper takes this principle further. It urges a statutory amendment prohibiting any devices or services designed to circumvent technological copy protection. 
The Working Group's copy protection proposals have received a lot of attention because they strike a lot of people as monumentally unwise. Devices and services that overcome copy-protection have legitimate uses. Copy protection can, after all, block access in situations when the copyright statute would privilege it. At a more basic level, the recommendation seems like an effort to hobble digital technology; to force digital objects to behave as if they were print. I won't repeat all the arguments against the proposal. I instead want to challenge what I take to be its underlying premise: that the right to make copies is fundamental to copyright in any sense other than the historical one.
When the old copyright laws fixed on reproduction as the compensable (or actionable) unit, it was not because there is something fundamentally invasive of an author's rights about making a copy of something. Rather, it was because, at the time, copies were easy to find and easy to count, so they were a useful benchmark for deciding when a copyright owner's rights had been unlawfully invaded. Unauthorized reproductions could be prohibited without curtailing the public's opportunities to purchase, read, view, hear or use copyrighted works. They are less useful measures today. Unauthorized copies have become difficult to find and difficult to count. In addition, now that copyright owners' opportunities to exploit their works are as often as not unconnected with the number of reproductions, finding and counting illicit copies is a poor approximation of the copyright owners' injury.
The reasons that copyright owners and the IITF Working Group might have for wanting to treat reproduction as a fundamental copyright right are obvious. By happenstance (at least from the vantage point of 1790, or 1870, or even 1909 or 1976), control over reproduction could potentially allow copyright owners control over every use of digital technology in connection with their protected works. This is not what the Congresses in 1790, 1870, 1909 and 1976 meant to accomplish when they awarded copyright owners exclusive reproduction rights. Printing presses used to be expensive; the photocopy machine was invented during the baby boom. Multiple reproduction was, until very recently, a chiefly commercial act. Pegging authors' compensation to reproduction, therefore, allowed past Congresses to set up a system that encouraged authors to create and disclose new works while ensuring the public's opportunities to read, view or listen to them, learn from them, share them, improve on them and, ultimately, reuse them. Today, making digital reproductions is an unavoidable incident of reading, viewing, listening to, learning from, sharing, improving, and reusing works embodied in digital media. The centrality of copying to use of digital technology is precisely why reproduction is no longer an appropriate way to measure infringement.
As recently as the 1976 general copyright revision, the then-current state of technology permitted Congress to continue its reliance on the exclusive reproduction right by enacting a lot of arcane, hypertechnical rules and exceptions to it, at the behest of all of the stakeholders who argued that they required special treatment. That did not pose major problems because very few people needed to understand what the rules were, and many if not most of them could afford to hire lawyers. Unauthorized reproduction was illegal, said the rules, unless you were a "library or archives," a "transmitting organization entitled to transmit to the public a performance or display of a work," a "government body or other nonprofit organization," or a "public broadcasting entity"; or unless you were advertising "useful articles that have been offered for sale," "making and distributing phonorecords," or making pictures of a building "ordinarily visible from a public place." Those entitled to exemptions knew who they were and knew what limitations their privileges entailed.
We no longer live in that kind of world. Both the threat and promise of new technology centers on the ability it gives many, many people to perform the twenty-first century equivalents of printing, reprinting, publishing and vending. Copyright owners all over want the new, improved rules to govern the behavior of all citizens, not just major players in the copyright-affected businesses. And, since anyone who watches citizen behavior carefully to detect copyright violations can easily find enough to fill up her dance card in an afternoon, copyright owners have taken to the argument that citizens must be compelled to obey the rules, by installing technology that makes rule breaking impossible for the casual user and difficult for the expert hacker. Otherwise, they've argued, there's no hope of everyone's obeying the law.
Well of course not. How could they? They don't understand it, and I don't blame them: it isn't a particularly easy set of rules to understand, and even when you understand it, it's very hard to argue that the rules make any sense -- or made any sense, for that matter, when they were written. What nobody has tried, or even proposed, is that we either scrap the old set of rules, or declare the general citizenry immune from them, and instead devise a set of rules that, first, preserve some incentives for copyright holders (although not necessarily the precise incentives they currently enjoy); second, make some sense from the viewpoint of individuals; third, are easy to learn; and fourth, seem sensible and just to the people we are asking to obey them.
The first task, then, in revising copyright law for the new era requires a very basic choice about the sort of law we want. We can continue to write copyright laws that only copyright lawyers can decipher, and accept that only commercial and institutional actors will have good reason to comply with them, or we can contrive a legal structure that ordinary individuals can learn, understand and even regard as fair. The first alternative will take of itself: The White Paper comes with its very own legislative proposal that will inspire precisely the sort of log-rolling that has achieved detailed and technical legislation in the past. The second alternative is more difficult. How do we define a copyright law that is short, simple and fair?
If our goal is to write rules that individual members of the public will comply with, we need to begin by asking what the universe looks like from their vantage point. Members of the public, after all, are the folks we want to persuade that copyright is just and good and will promote the progress of science. They are unlikely to think highly of the Working Group's proposal that they need to secure permission for each act of viewing or listening to a work captured in digital form. They are unlikely to appreciate the relentless logic involved in concluding that, while copyright law permits the owner of a copy to transfer that copy freely, the privilege does not extend to any transfer by electronic transmission. They are unlikely to be persuaded that the crucial distinction between lawful and unlawful activity should turn on whether something has been reproduced in the memory of some computer somewhere.
If we are determined to apply the copyright law to the activities of everyone, everywhere, then I suggest that the basic reproductive unit no longer serves our needs, and we should jettison it completely. That proposal is radical: if we stop defining copyright in terms of reproduction, we will have to rethink it completely. Indeed, we will need a new name for it, since copyright will no longer describe it. What manner of exclusive right could we devise to replace reproduction as the essential compensable unit?
The public appears to believe that the copyright law incorporates a distinction between commercial and non-commercial behavior. Ask non-lawyers, and they will tell you that making money using other people's works is copyright infringement, while non-commercial uses are all okay (or, at least, okay unless they do terrible things to the commercial market for the work). Now, that has never, ever been the rule but, as rules go, it isn't a bad start. It isn't very far from the way, in practice, the rules actually work out. Non-commercial users rarely get sued and, when they do, tend to have powerful fair use arguments on their side. Moreover, if it is a rule that more people than not would actually obey because it struck them as just, we would be a long way towards coming up with a copyright law that would actually work. So why not start by recasting copyright as an exclusive right of commercial exploitation? 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. 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," and ask instead what effect those actions had on the copyright holder's opportunities for commercial exploitation.
Such a standard is easy to articulate and hard to disagree with in principle. The difficulty lies in predicting how it would work out in practice. So general a rule would necessarily rely on common-law lawmaking for embroidery. One significant drawback of this sort of standard, then, is that it would replace the detailed bright lines in the current statute with uncertainty. But the bright lines Congress gave us embody at least as much uncertainty, although it is uncertainty of a different sort. The detailed bright lines have evolved, through accident of technological change, into all-inclusive categories of infringers with tiny pock-marks of express exemptions and privileges, and undefined and largely unacknowledged free zones of people-who-are-technically-infringing-but-will-never-get-sued, like your next-door neighbor who duplicates his wife's authorized copy of Windows 95® rather than buying his own from the computer store. The brightness of the current lines is illusory.
Giving copyright holders the sole right to commercially exploit or authorize the commercial exploitation of their works, of course, is a more constrained grant than even the current capacious statutory language, much less the expansive interpretation proffered by the Information Infrastructure Task Force. It removes vexing (if rarely litigated) everyday infringements, like your neighbor's bootleg copy of Windows 95®, from the picture entirely. Is surgery that radical necessary? Certainly not. It would, however, have some significant advantages.
First, to the extent that current constructions of the reproduction right have shown a rapacious tendency, their proponents commonly defend them on the ground that a single isolated unauthorized digital copy can devastate the market for copyrighted works by enabling an endless string of identical illegal copies. Sometimes they explain that a single harmless copy would never give rise to a lawsuit. If that's so, copyright holders lose nothing of value by trading in their reproduction rights for exclusive control over commercial exploitation. If the danger of an unauthorized copy is that it might ripen into a significant burden on the commercial market, then defining that harm as copyright infringement will address the danger without being overinclusive.
Moreoever, the common law interpretative process we would necessarily rely on to explicate a general standard unencumbered by all of the detailed exceptions in the current statute is better set up to articulate privileges and limitations of general application than our copyright legislative process has proved to be. While judicial lawmaking may not succeed very well, very often, at arriving at sensible solutions, the process constrains it to try to draw lines that make sense. The public is more likely to accept lines drawn by drafters who are attempting to make sense. And the public's involvement, as jurors, in drawing these lines just might allow us to incorporate emerging social copyright norms into the rules we apply.
Finally, once we abolish the detailed, specific exemptions in the current law, the industries that have been able to rely on them will need to seek shelter within the same general limitations on which the rest of us depend. It is common for large copyright-intensive businesses to insist that they are both copyright owners and copyright users, and that they are therefore interested in a balanced copyright law. They typically fail to mention that unlike the vast majority of copyright users, and unlike new start-up copyright-affected businesses, they were able to negotiate the enactment of detailed copyright privileges. In most cases, those privileges both gave them what they believed at the time they would need, and also, if they were very clever or very lucky, were drafted with enough specificity to prove unhelpful to new, competing media that might crawl out of the woodwork in the future. Eliminating current stakeholders' structural advantages from the copyright law would do much to restore a more durable balance.
Most copyright owners, of course, would greet my suggestion without enthusiasm. Their reluctance to relinquish theoretical legal control over unauthorized private noncommercial reproduction is likely to be due, in part, to the usefulness of the reproduction right in a digital era as an all-purpose pretext for asserting control over activities never meant to be included within the copyright bundle of rights. The White Paper's analysis illustrates this point neatly. It relies on the reproduction right to vest copyright holders with legal control over "most NII transactions," and voices no concern that networked digital communications were not even considered by Congress when it enacted the relevant language. The White Paper, moreover, uses the reproduction right to support its argument that adding a new right of transmission to the copyright statute will not expand copyright owners' rights to a meaningful degree. Finally, it is the spectre of mass violations of the fundamental reproduction right that the White Paper raises in support of its proposed prohibition of devices and services that circumvent technological copy-protection.
In addition to separating copyright owners from a useful tool for overreaching, abandoning the reproduction right in favor of a right of commercial exploitation would have the benefit of conforming the law more closely to popular expectations. That would ease enforcement, and make mass education about the benefits of intellectual property law more appealing.
I don't suggest for a minute that limiting copyright's exclusive rights to a general right of dissemination for commercial gain will solve all of the problems I have raised for the public's side of the copyright bargain. Most obviously, copyright holders will rely, as they have in the past, on mechanisms outside of the copyright law to enhance their control over their works. The technological controls that the White Paper is so protective of are one such mechanism. Adhesion contracts purporting to restrict users' rights as part of a license are another. Indeed, one of the most important items on the White Paper's unstated agenda seems to be the reinforcement of industry efforts to find contract law work-arounds for privileges that current copyright law accords to users. Even if the copyright grant is narrowed in scope, the public will need some of its rights made explicit. If we find ourselves too fond of the reproduction right, with its venerable pedigree, to abandon it, then explicit public privileges seem essential.
For example, the public has had, under current law, and should have, a right to read. Until recently, this wasn't even questionable. Copyright owners' rights did not extend to reading, listening, or viewing any more than they extended to private performances. A couple of courts adjudicating commercial disputes, though, 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. 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. This expansion of the scope of the reproduction right is controversial. Even if it were to become a settled legal rule, recent courts' application of the fair use privilege arguably exempts most private, temporary copying from the reach of the current statute. Still, fair use is a troublesome privilege because it requires a hideously expensive trial to prove that one's actions come within its shelter. So, let's start with an express ephemeral copying privilege. Commercial broadcasters, after all, have such a privilege now, and are in a position to do far more damage with theirs; why not replace it with one for everyone? If temporary copies are an unavoidable incident of reading, we should extend a privilege to make temporary copies to all.
Moreover, the public has had, under current law, and should have, 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. Again, both long copyright tradition and current case law recognize this right, but the White Paper's proposals on technological copy protection threaten to defeat it. Copyright owners have no legitimate claim to fence off the public domain material that they have incorporated in their copyrighted works from the public from whom they borrowed it, so why not make the public's rights to the public domain explicit?
Finally, the remarkable plasticity of digital media has introduced a new sort of obstacle to public dissemination: Works can be altered, undetectably, and there is no way for an author to insure that the work being distributed over her name is the version she wrote. That danger has inspired some representatives of authors and publishers to insist that the law give copyright holders more control over their digital documents, over access to those documents, and over any reproduction or distribution of them. This solution is excessive; there is a more measured alternative. The United States could adopt its own version of an integrity right. Some copyright experts view integrity rights as yet another way that authors exert unwarranted control over the uses of their works, but the right need not be framed that way. Authors have a legitimate concern, and that concern is often shared by the public. Finding the authentic version of whatever document you are seeking can in many cases be vitally important. Moreover, while European integrity rights include the ability to prohibit mutilations and distortions, digital media gives us the opportunity to devise a gentler solution: any adaptation, licensed or not, should be accompanied by a truthful disclaimer and a citation or hypertext link to an unaltered copy of the original. That suffices to safeguard the work's integrity, and protects our cultural heritage, but it gives copyright owners no leverage to restrict access to public domain materials by adding value and claiming copyright protection for the mixture.
The most compelling advantage of encouraging copyright industries to work out the details of the copyright law among themselves, before passing the finished product on to a compliant Congress for enactment, has been that it produced copyright laws that the relevant players could live with, because they wrote them. If we intend the law to apply to individual end users' everyday interaction with copyrighted material, however, we will need to take a different approach. Direct negotiation among industry representatives and a few hundred million end-users would be unwieldy (even by copyright legislation standards). Imposing the choices of the current stakeholders on a few hundred million individuals is unlikely to result in rules that that the new majority of relevant players find workable. They will not, after all, have written them. There are, moreover, few signs that the entities proposing statutory revision have taken the public's interests very seriously. Instead, they seem determined to see their proposals enacted before they can be the subject of serious public debate.
If the overwhelming majority of actors regulated by the copyright law are ordinary end-users, it makes no sense to insist that each of them retain copyright counsel in order to fit herself within niches created to suit businesses and institutions, nor is it wise to draw the lines where the representatives of today's current stakeholders insist they would prefer to draw them. Extending the prescriptions and proscriptions of the current copyright law to govern the everyday acts of non-commercial, non-institutional users is a fundamental change. To do so without effecting a drastic shift in the copyright balance will require a comparably fundamental change in the copyright statutory scheme. If we are to devise a copyright law that meets the public's needs, we might most profitably abandon copyright law's traditional reliance on reproduction, and refashion our measure of unlawful use to better incorporate the public's understanding of the copyright bargain.
* An earlier version of this paper was delivered at the 23d Annual Telecommunications Policy Research Conference, and is available at http://swissnet.ai.mit.edu/6805/articles/int-prop/litman-revising/revising.html.
Pamela Samuelson, Wendy Gordon, Mark Lemley, Hal Abselson, Mary Brandt Jensen, James Boyle, Jane Ginsburg, and especially Jonathan Weinberg made many helpful comments on earlier drafts.
See, e.g., Intellectual Property Issues Involved in the National Information Infrastructure Initiative: Public Hearing Before the National Information Infrastructure Task Force Working Group on Intellectual Property, Nov. 18, 1993 [hereinafter Nov. 18, 1993 IITF Hearing], at 14 (testimony of Steven J. Metalitz, Information Industry Association); id. at 99 (testimony of Fritz E. Attaway, Motion Picture Association of America); Public Hearing at University of California Los Angeles Before the Information Infrastructure Task Force Working Group on Intellectual Property, September 16, 1994 [hereinafter Sept. 16, 1994 IITF Hearing], at 5-7 (testimony of George Vradenbeurg, Fox, Inc.).
See, e.g., Nov. 18, 1993 IITF Hearings, supra note , at 85 (testimony of David H. Rothman); Public Hearing at University of Chicago Before the Information Infrastructure Task Force Working Group on Intellectual Property Rights, September 14, 1994 [hereinafter Sept. 14, 1994 IITF Hearing], at 24-26 (testimony of John Rademacher, American Farm Bureau Federation).
See, e.g., Jane C. Ginsburg, Four Reasons and a Paradox: The Manifest Superiority of Copyright Over Sui Generis Protection Of Computer Software, 94 COLUM. L. REV. 2559 (1994); Public Hearing at Andrew Mellon Auditorium Before the Information Infrastructure Task Force Working Group on Intellectual Property Rights, September 22, 1994 [hereinafter Sept. 22, 1994 IITF Hearing], at 31 (testimony of Morton David Goldberg, Schwab, Goldberg, Price and Dannay).
INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (1995) [hereinafter WHITE PAPER]. The Final Report is not the florid endorsement of enhanced copyright protection that its predecessor draft report was. See INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (1994) [hereinafter GREEN PAPER]. The Green Paper draft predicated its analysis on the premise that unless copyright law were strengthened, the originators of content would refuse to make their works available to the public. Id. at 6-10. Its approach was twofold: the draft contained revisionary interpretations of current law that enhanced copyright owners' control over their works, see id. at 35-37, 45-53, and suggestions for further fortifying that control. Id. at 120-33. See generally, e.g., Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENTERTAINMENT L.J. 29 (1994); Pamela Samuelson, Legally Speaking: The NII Intellectual Property Report, 37 COMMUNICATIONS OF THE ACM, December 1994, at 12; Diane Leenheer Zimmerman, Copyright in Cyberspace: Don't Throw Out the Public Interest with the Bath Water, 1994 ANN. SURV. AM. L. 403.
The White Paper spends most of its ink on the revisionary interpretation leg of the strategy: it asserts that most of the enhanced protection copyright owners might want is already available under current law, at least so long as that law is properly interpreted, and it contains a long exegesis of what the properly interpreted copyright law should be read to provide. See WHITE PAPER, supra, at 19-130. The difference is largely one of style rather than substance, as the White Paper ends up endorsing most of the recommendations tentatively included in the Green Paper, but its tone is noticeably less hostile to the universe of users of copyrighted works. The White Paper and Green Paper, and transcripts of the public hearings held in September, 1994 cited supra notes - , are available electronically via the Task Force's gopher server at iitf.doc.gov [URL: gopher://ntiaunix1.ntia.doc.gov:70/11s/iitf/infopol]. The November 18, 1993 Hearing transcript, see supra note , was initially released on the IITF gopher and then removed; a copy of that transcript is preserved at URL: gopher://sunbird.usd.edu:70/11/Academic%20Divisions/
School%20of%20Law/NII%20Working%20Group%20on%20Intellectual%20Property. WHITE PAPER, supra note 4, at 212.
When convenient for its argument, the White Paper relies on the expressed intent of congressional committees to buttress its analysis of current copyright law, see, e.g., WHITE PAPER, supra note 4, at 226; when express language in the congressional Committee Reports is less convenient, the White Paper ignores it, see, e.g., id. at 65, or characterizes it as irrelevant, see id. at 72 n.226. Similarly, the Report is selective in its citation of case authority. See James Boyle, Overregulating the Internet, WASH. TIMES, Nov. 14, 1995, at A17; Pamela Samuelson, The Copyright Grab, WIRED, January, 1996, at 137-38.
17 U.S.C.SS 106(1) (1994):
. . .the owner of copyright . . . has the exclusive right to do or authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords
"Copies" are defined in 17 U.S.C. SS 101 as
material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."Fixed" is also defined in section 101:
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or a phonorecord . . . is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration. . . .
WHITE PAPER, supra note 4, at 64-66. This particular piece of revisionist interpretation is irresponsible. The legislative materials accompanying the Copyright Act make it clear that Congress intended to assimilate the appearance of a work (or portions of a work) in a computer's random access memory to unfixed, evanescent images rather than "copies." See H.R. REP. No. 1476, 94th Cong., 2d Sess. 52-53, 62 (1976); Litman, supra note 4; Samuelson, supra note4 .
WHITE PAPER, supra note 4, at 114-24; see Samuelson, supra note 6.
See, e.g., WHITE PAPER, supra note 4, at 90-95.
WHITE PAPER, supra note 4, at 64-66, 90-95, 214-17. See Leslie A. Kurtz, Copyright and the National information Infrastructure, 18 EUROPEAN INTELLECTUAL PROPERTY REVIEW 120 (1996).
See Jessica Litman, Copyright Legislation and Technological Change, 78 ORE. L. REV. 275, 353-54 (1989); see, e.g., Home Video Recording: Hearings Before the Senate Judiciary Comm., 99th Cong., 2d Sess. 3 (1987) (testimony of Jack Valenti, Motion Picture Association of America); id. at 84-94 (statement of Charlie Ferris, Home Recording Rights Coalition); Home Audio Recording Act: Hearing on S. 1739 before the Senate Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. (1986).
See PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY 129-64 (1994).
See Litman, supra note 4.
See id. at 50-53. See generally 1 NICHOLAS HENRY, COPYRIGHT, CONGRESS AND TECHNOLOGY: THE PUBLIC RECORD xi-xxii, 1-5, 99-105 (1978); 2 NICHOLAS HENRY, supra, at vx-xxiii; 3 NICHOLAS HENRY, supra, at xiii-xli; Litman, supra note 12; see also Thomas P. Olseon, The Iron Law of Consensus, Congressional Responses to Proposed Copyright Reforms Since the 1909 Act, 36 J. COPYRIGHT SOC'Y 109 (1989).
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); Pamela Samuelson, Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: The Implications of Sony, Galoob, and Sega, 1 J. INTELL. PROP. L. 49, 67 (1993).
See, e.g., WHITE PAPER, supra note , at 73 n.227; Sept. 14, 1994 IITF Hearing, supra note 2, at 44-46 (testimony of Edward Massie, CCH); June M. Besek, Future Copyright Protection: Is Existing Law Adequate in a Networked World?, N.Y.L.J., Dec. 5, 1994, at Supp. 1.
 See WHITE PAPER, supra note 4, at 63-96.
See Litman, supra note 4; Sept. 22, 1994 IITF Hearing, supra note 3, at 66-67 (testimony of Jessica Litman); 13 THE WAYNE LAWYER 18 (Summer 1995).
See Kurtz, supra note 11, at 121-23, 126.
Note, here, that we are talking not only about author-stakeholders, or publisher-stakeholders, but also about collecting-agency-stakeholders. The dispute between the Harry Fox Agency and ASCAP over whether a transmission over the Internet should be deemed a distribution or a performance is exemplary: The composer would get the royalties either way, but the collecting entity's cut would go to a different stakeholder. See Public Hearing at Andrew Mellon Auditorium Before the Information Infrastructure Task Force Working Group on Intellectual Property Rights, September 23, 1994 [hereinafter Sept. 23, 1994 IITF Hearing], at 19-22 (testimony of Stu Gardner, composer); id. at 25-28 (testimony of Michael Pollack, Sony Music Entertainment); id. at 28-31 (testimony of Marilyn Bergman, ASCAP); id. at 31-33 (testimony of Hillary Rosen, Recording Industry Association of America); id. at 33-38 (testimony of Frances Preston, BMI); id at 38-43 (testimony of Edward Murphy, National Music Publishers' Association).
Cf. WHITE PAPER, supra note 4, at 230-34 (recommending prohibition of devices and services that defeat copy protection).
See Jonathan Weinberg, Broadcasting and the Administrative Process in Japan and the United States, 39 BUFF. L. REV. 615, 694-700 (1991).
See Litman, supra note 12, at 342-46.
See Kennedy v. McTammany, 33 F. 584 (CC Mass. 1888); White-Smith Music Publishing v. Apollo Co., 209 U.S. 1 (1908).
Copyright Act of March 4, 1909, ch. 320. SS 1(e), 35 Stat. 1075 (1909) (codified as amended at 17 U.S.C. SSSS 1(e), 101(e)), repealed by Pub. L. No. 94-533, 90 Stat. 2541 (1976). See U.S. LIBRARY OF CONGRESS, SECOND SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW: 1975 REVISION BILL, Ch. IX (1975).
Copyright Act of March 4, 1909, SS 1(e), 35 Stat. 107. See U.S. LIBRARY OF CONGRESS, SECOND SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS, supra note 26, at Ch. X.
See Litman, supra note 12, at 291-304.
See id. at 305-308.
See 17 U.S.C. SS 109 (1994). See generally Home Video Recording, supra note12, at 2-3.
See Teleprompter Corp. v. Columbia Broadcasting System, 415 U.S. 394 (1974); Fortnightly Corp. v. United Artists Television, 392 U.S. 390 (1968).
See 17 U.S.C. SS 111(d) (1994). Assumptions of copyright immunity can stimulate nascent businesses even when they're wrong. A widely held view about the scope of education fair use had a great deal to do with the success of the commercial copy-shop industry. See Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N..Y 1991); Princeton University Press v. Michigan Document Services, 855 F. Supp. 905 (E.D. Mich. 1994), rev'd, 74 F.3d 1512 (6th Cir. 1996), vacated en banc, 74 F.3d 1528 (6th Cir. 1996). The copy-shops took advantage of their supposed privilege to develop a market that publishers were ignoring; when the course-pack services proved popular, publishers found it worthwhile to set up course-pack photocopy permissions bureaus. See id; American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994). Courts have split on whether that fair use claim is legitimate. Compare Kinko's, 758 F. Supp. at 1530-35, with Michigan Document
Services, 74 F. 3d at 1518-24.
Another example can be seen in the explosive growth of both commercial and non-commercial Internet services. Many subscribers assume that material that is made freely available over the Internet is subject to no copyright restrictions except those explicitly reserved in the text of the electronic documents. Anecdotal evidence suggests that unauthorized copying and dissemination of protected material is widespread. Copyright holders testifying before the Working Group on Intellectual Property suggested that without effective copyright protection, copyright holders would refuse to make material available over the Internet, and that the information highway would have no travelers on it because there would be nothing there to read, hear, or see. See, e.g., Nov. 18, 1993 IITF Hearing, supra note 1, at 14 (testimony of Steven J. Metalitz, Information Industry Association); Sept. 14, 1994 IITF Hearing, supra note 2, at 20 (testimony of Priscilla Walter, Gardner, Carlton & Douglas); id. at 31-32 (testimony of James Schatz, West Publishing Co.); see also WHITE PAPER, supra note 4, at 10-11. Yet today, most of the major copyright stakeholders whose lawyers made those argument are not waiting to see whether we will succeed in shoring up our copyright protection; they have already established a presence on the Internet. Some of them have World Wide Web pages; others have made their products available through a commercial service provider like America Online; still others are making their wares generally available at no charge to anyone who has Internet access. See Denise Caruso, Digital Commerce: A Study by A.C. Neilsen seeks to separate buyers from browsers on the Internet, N.Y. TIMES, Aug. 21, 1995, at C3.
Consider one example: when the IITF Working Group on Intellectual Property held its first public hearing, representatives of a variety of copyright-intensive industries argued that without stronger copyright protection, content providers would refuse to make works available in electronic form. See Nov. 18 , 1993 IITF Hearing, supra note 1. The Green Paper used these concerns as the predicate for its suggested reforms. See GREEN PAPER, supra note 4, at 6-7. In the two years between the initial Hearing and the release of the Working Group's final Report, the World Wide Web exploded: a variety of information and entertainment companies scrambled to establish conspicuous presences on the Web without waiting for copyright reform. Some of these companies doubtless restrict the material they make available because of fears of unbridled copying. Others, however, seem to be more interested in gaining market share than in preserving the inviolability of their content. In apparent response, the White Paper discounted the claim made in the Green Paper that absent strong copyright protection, "[t]the potential of the NII will not be realized", see GREEN PAPER, supra note , at 6, to the more moderate assertion that "the full potential of the NII will not be realized . . .." WHITE PAPER, supra note 4, at 10 (emphasis mine).
The sort of marketplace that grows up in the shelter of a copyright exemption can be vibrant, competitive, and sometimes brutal. Some prospectors will seek to develop market share on a hunch; others from conviction. Still others may aim only to generate a modestly valuable asset that will inspire some bigger fish out there to eat them. In any event, new products may be imagined, created, tested and introduced, and new media may be explored. Fierce competition is not very comfortable, but it can promote the progress of science nonetheless.
Indeed, one could argue that one of the virtues of established rules and practices for those that subscribe to them is the entry barriers they represent for outsiders.
Netscape managed to amass a 75% market share by making its software available to users for free. Although it had not yet earned a profit, a public offering of Netscape stock in August, 1995 set Wall Street records. See Laurence Zuckerman, With Internet Cachet, Not Profit, A New Stock Amazes Wall Street, N.Y. TIMES, August 10, 1995, at A1, C5.
The White Paper speaks dismissively of "some" who "assert that copyright protection should be reduced in the NII environment," WHITE PAPER, supra note , at 14, but few such persons appear to have testified at any of the five public hearings the Working Group held. One was Ellen Kirsch, testifying for America Online that "[t]he on-line computer service industry is seriously concerned that the copyright laws currently in effect will stifle our industry and this important new method of communication and content delivery." Sept. 22, 1994 IITF Hearing, supra note 3, at 25. There were also a very few witnesses who suggested that the Working Group's interpretation of current law, and its suggestions for further amendments, represented unwarranted expansions of copyright protection. See, e.g., id., at 59-61 (testimony of Robert Oakley, American Association of Law Libraries); Sept 14, 1994 IITF Hearing, supra note , at 5-9 (testimony of Edward Valauskas, American Library Association).
See, e.g., Thorvald Solberg, Copyright Law Reform, 35 YALE L.J. 48 (1925).
See Mark Walsh, Defending Her Turf: As Copyright Chief Marybeth Peters rebuilds her staff, she must also fight for power with patent czar Bruce Lehman, The Recorder, April 19, 1995, at 1.
See GREEN PAPER, supra note 4; WHITE PAPER, supra note 4; see, e.g., Sept. 22, 1994 IITF Hearing, supra note 3, at 32-33 (remarks of Commissioner Lehman); Sept. 23, 1994 IITF Hearing, supra note 21, at 11, 24-25 (remarks of Commissioner Lehman).
Appointed to chair a Working Group on Intellectual Property and the NII, Commissioner Lehman solicited industry views and requests, see Nov. 18, 1993 IITF Hearing, supra note 1, and issued a Preliminary Report, see GREEN PAPER, supra note 4, that endorsed everything on the industry wish list and included a widely criticized description of the many ways in which current law established much of that wish list already. The recently released Final Report, see WHITE PAPER, supra note 4, is more carefully written and reasoned, but makes essentially the same recommendations as the earlier draft.
Without a Government entity to take the benevolent despot's role, that viewpoint is being unevenly pressed by academics, policy bodies, and current stakeholders who find themselves disadvantaged or threatened
by the present regime. It is not my purpose to claim that role, or to justify my own proposals on that basis.
See, e.g., Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 429& n.10 (1984) (quoting H.R. REP. NO. 2222, 60th Cong., 2d Sess. (1909).) ; Kurtz, supra note , at 121. See generally Litman, supra note 4.
See generally L. RAY PATTERSON AND STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT: A LAW OF USER'S RIGHTS (1991).
See, e.g., Rochelle Cooper Dreyfuss, The Creative Employee and the Copyright Act of 1976, 54 U. CHICAGO L. REV. 590 (1987); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1907-16 (1990); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600 (1982); Linda J. Lacey, Of Bread and Roses and Copyrights, 1989 DUKE L.J. 1532 (1989).
See, e.g., William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 HARV. L. REV. 1659 (1988).
U.S. CONST. art I, SS 8, cl. 8.
The 1976 Copyright Act extended federal statutory copyright to unpublished works. Before that, copyright protection was available for published works and for works, such as lectures or paintings, that were typically publicly exploited without being reproduced in copies. See generally 1 WILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 414-21 (1994).
See L. Ray Patterson, Copyright and the "Exclusive Right" of Authors, 1 J. INTELLECTUAL PROPERTY L. 1, 37 (1993).
Act of May 31, 1990, cg. 15, SS 1, 1 Stat. 124.
See 17 U.S.C. SS 106(1), (3) (1994).
Bobbs Merrill v. Strauss, 210 US 339 (1908); Harrison v. Maynard, Merril & Co, 61 F. 689 (2d Cir. 1894). The first sale doctrine allows the owner of any lawful copy of a work to dispose of that copy as she pleases.
Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa 1853) (No 13,514); Kennedy v. McTammany, 33 F. 584 (C.C.D. Mass. 1888).
Baker v. Selden, 101 U.S. 99 (1879).
See Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass 1841)(No. 4,901).
See 2 PATRY, supra note 46, at 971-87.
See 17 U.S.C. SS 115 (1994).
See id . SS 111(c).
See id . SS 119.
See id SS 118.
See id. SS 112.
See id. SS 113(c).
See id. SS 108.
See id. SS 110(1).
See id. SS110 (7).
See id. SS 110(5).
There is one, sort of. Section 1008 includes a provision that bars infringement suits "based on the noncommercial use by a consumer" of an audio recording device for making "musical recordings." 17 U.S.C. SS 1008 (1994). The provision carefully omits any statement that such recordings are not infringement, and was demanded by the consumer electronics industry as a condition for supporting the Audio Home Recording Act. See infra note 71 and accompanying text.
17 U.S.C. SS 106(1).
See, e.g., WHITE PAPER, supra note 4, at 64.
See, e.g., U.S. Adherence to the Berne Convention: Hearings Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 1st and 2d Sess. 47 (1987) (testimony of Barbara Ringer, Former Register of Copyrights); Eric Fleishmann, The Impact of Digital Technology on Copyright Law, J. PAT. & TRADEMARK OFF. SOC'Y, Jan. 1988, at 5.
See Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984); Home Recording of Copyrighted Works: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 2d Sess. (1982).
Record Rental Amendment of 1984, Pub. L. No. 98-450, 98th Cong., 2d Sess., 98 Stat. 1727 (1984); Computer Software Rental Amendments of 1990, Pub. L. No. 101-650, 101st Cong., 2d Sess, 104 Stat. 5089, 5134-37 (1990) (codified at 17 USC SS 109 (1994)). See generally 2 PATRY, supra note 46, at 842-62.
Audio Home Recording Act of 1992, Pub. L. No. 102-563, 102d Cong., 2d Sess., 106 Stat. 4237 (1992). See Audio Home Recording Act of 1991: Hearing on H.R. 3204 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 2d Sess. (1993).
WHITE PAPER, supra note 4 , at 230-34.
See, e.g., Kurtz, supra note 11; Pamela Samuelson, Technological Propection for Copyrighted Works, 45 EMORY L.J. __ (forthcoming, 1996); Mark Voorhees, Commissioner Keeping a Firm Grasp on Administration's Package to Protect Electronic Intellectual Property, INFO. LAW ALERT, May 12, 1995; Zimmerman, supra note 4, at 408-12.
See Vault Corp. v. Quaid Software, Ltd., 847 F. 2d 255 (5th Cir. 1988); 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); COPYRIGHT AND HOME COPYING, supra note 16; Litman, supra note 4, at 32 n.21; Samuelson, supra note 73.
See WHITE PAPER, supra note , at 64-66, 90-95; see also Sept. 23, 1994 IITF Hearing, supra note , at 6 (testimony of Steven Metalitz, Information Industry Association):
We've got a few advantages into proceeding through the vehicle of the reproduction right. One is it avoids the question of defining or debate over whether a particular distribution of a work has been made to the public, or whether even distribution or a performance has been made to the public. Second, it may obviate the need for an expansion of the definition of publication . . .
While the White Paper's characterization of the reproduction right as encompassing any appearance of a work in computer RAM is difficult to defend, see supra note , that distortion may not have much practical significance. There is little question that the same work saved to a disk cache or backup file is "reproduced" within the literal terms of the statute.
See generally Litman, supra note 12, at 323-26; Jessica D. Litman, Copyright, Compromise and Legislative History, 72 CORNELL L. REV. 857 (1987).
See 17 U.S.C. SS 108 (1994).
Id. SS 112(a).
Id. SS 112(b).
Id. SS 118.
Id. SS 113(c).
Id. SS 115.
Id. SS 120.
WHITE PAPER, supra note 4, Appendix at 1; see S. 1284, 104th Cong., 1st Sess. (1995).
See WHITE PAPER, supra note 4, at 93-94:
Some argue that the first sale doctrine should also apply to transmissions, as long as the transmitter destroys or deletes from his computer the original copy from which the reproduction in the receiving computer was made. The proponents of this view argue that at the completion of the activity, only one copy would exist between the original owner who transmitted the copy and the person who received it -- the same number of copies at the beginning. However, this zero sum gaming analysis misses the point. The question is not whether there exist the same number of copies at the completion of the transmission or not. The question is whether the transaction when viewed as a whole violates one or more of the exclusive rights, and there is no applicable exception from liability. In this case, without any doubt, a reproduction of the work takes place in the receiving computer. To apply the first sale doctrine in such a case would vitiate the reproduction right.
My discussion completely omits the immense practical difficulties in getting such a proposal enacted into law, over the presumed antagonism of current copyright stakeholders, and in apparent derogation of our obligations under international copyright treaties. Other copyright professionals who have gone along with my argument thus far are invited to leave the bus at this station.
See Litman, supra note 4, at 35-36.
See, e.g., Intellectual Property Rights in an Age of Electronics and Information, supra note , at 121-22, 209; see generally THE POLICY PLANNING GROUP, YANKELOVICH, SKELLY & WHITE, INC., PUBLIC PERCEPTIONS OF THE "INTELLECTUAL PROPERTY RIGHTS" ISSUE (1985) (OTA Contractor Report).
Routine free use of educational materials by educational institutions seems like a good example of the sort of noncommercial use that should be classed as "large scale interference" with copyright holders' commercial opportunities. On the other hand, the fact that a particular individual's viewing or copying of a digital work might itself supplant the sale of a license to view or copy if such licenses were legally required should count neither as making money nor as large scale interference with commercial opportunities. For a contrary view, see Jane C. Ginsburg, Putting Cars on the "Information Superhighway:" Authors, Exploiters and Copyrights in Cyberspace, 95 COLUM. L. REV. 1466, 1478-79 (1995). Professor Ginsburg argues that because the private copying market has supplanted traditional distribution, even temporary individual copying in cyberspace will impair the copyright owner's rights, although she concedes that fully enforcing those rights may be impractical. Id. That copyright holders have recently begun to exploit the market for licenses to make individual copies, however, tells us little about the scope of their entitlement to demand such licenses under current law, and even less about whether a revised law should extend to such claims. See Michigan Document Services v. Princeton University Press, 74 F.3d 1512, 1523 (6th Cir. 1996) ("It is circular to argue that a use is unfair, and a fee therefore required, on the basis that the publisher is therefore deprived of a fee."), vacated en banc, 74 F.3d 1528 (6th Cir. 1996).
17 U.S.C. SS 101 (1994).
As an illustration, consider the case of Robert LaMacchia. Mr. LaMacchia was unsuccessfully prosecuted under the wire fraud statute for providing a computer bulletin board where users uploaded and downloaded unauthorized copies of commercially published software. See U.S. v. LaMacchia, 871 F. Supp. 535 (D. Mass.
1994). LaMacchia had no commercial motive and gained no commercial advantage by this activity, but his bulletin board made it possible for some number of people who might otherwise have purchased authorized copies of software to obtain unauthorized copies for free. The White Paper favors amending the copyright law to ensure that people like Robert LaMacchia can be successfully prosecuted for criminal copyright infringement from now on. See WHITE PAPER, supra note 4, at 228-29. Under the standard I propose, that activity would be infringement if copyright holders demonstrated to the trier of fact that LaMacchia's BBS worked a large scale interference with their marketing opportunities. Merely proving that if such activities were to become widespread they would have potentially devastating marketing effects, on the other hand, would not satisfy the standard.
There is a substantial literature on the relative merits of rules and standards. See, e.g., Jonathan Weinberg, Broadcasting and Speech, 81 CALIFORNIA L. REV. 1110 (1993).
See, e.g., Ginsburg, supra note89 , at 1467-68; WHITE PAPER, supra note 4, at 10, 203. More passionate proponents commonly argue that if the copying is not checked, the incentives for creation will crumble and there will be no copyrighted works to reproduce. See, e.g, Nov. 18, 1993 IITF Hearing, supra note 1, at 14-16 (testimony of Steven Metalitz, Information Industry Association). Cf. Home Recording of Copyrighted Works, supra note 69, at 142 (testimony of Howard Wayne Oliver, AFTRA) (testifying, in 1982, that if audio and video tape recording were not curtailed, the motion picture and television industries would be crippled and ultimately destroyed).
See, e.g., September 16 IITF Hearing, supra note 1, at 22 (testimony of William Barwell, Times Mirror Company).
WHITE PAPER, supra note 4, at 64.
Id. at 216.
Some are of the view that the current language of the Act does not encompass distribution by transmission. They argue that the proposed amendment expands the copyright owner's rights without a concomitant expansion of the limitations on those rights. However, since transmissions of copies already clearly implicate the reproduction right, it is misleading to suggest that the proposed amendment of the distribution right would expand the copyright owner's rights into an area previously unprotected.Id.
Id. at 230-34.
See id. at 201-10. I found the White Paper's treatment of copyright education and its description of its "Copyright Awareness Campaign" somewhat chilling in its singlemindedness; it is careful to leave no room for divergent views on the essential goodness of intellectual property ownership.
See Samuelson, supra note 73.
See, e.g., Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239 (1995); Steven Metalitz, The National Information Infrastructure, 13 CARDOZO ARTS & ENTERTAINMENT L.J. 465, 469-72 (1995); Pamela Samuelson, Legally Speaking: Software Compatibility and the Law, 38 COMMUNICATIONS OF THE ACM, August 1995, at 15, 20.
See WHITE PAPER, supra note 4, at 49-59. Many industry witnesses at the Working Group's public hearings insisted that contractual and technological means of controlling public access to their wares were far more important tools than copyright law offered. See, e.g., Nov. 18, 1983 IITF Hearing, supra note1 , at 50-57 (testimony of Timothy King, John Wiley & Sons); Sept. 14, 1994 IITF Hearing supra note 2, at 20-23 (testimony of Priscilla Walter, Gardner, Carton & Douglas); id at 44-46 (testimony of Edward Massie,
Commerce Clearing House, Inc.).
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, 64 F.3d 1330 (9th Cir. 1995), cert. denied, 116 S. Ct. 1015 (1996); Advanced Computer Services v. MAI Systems Corp., 845 F. Supp. 356 (E.D.Va 1994).
See WHITE PAPER, supra note 4, at 64-66.
See Kurtz, supra note 11, at 121-22; Litman, supra note 4, at 40-43; see also Samuelson, supra note 4.
See Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984); 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).
Accord American Association of Law Libraries et. al., Fair Use in the Electronic Age: Serving the Public Interest, URL: gopher://arl.cni.org:70/00/scomm/copyright/policy/uses (Jan. 18, 1995).
See 17 U.S.C. SS 112 (1994).
Some representatives of copyright owners have recently suggested augmenting the rights in the copyright bundle by adding an exclusive right to gain access to protected works and an exclusive right to use protected works. See, e.g., The 1976 Copyright Act and the Challenge of the Digital Environment, Harvard Information Infrastructure Project and U.S. Copyright Office Invitational Seminar on The Future of Copyright Policy, Washington DC, Dec. 6, 1995 (remarks of Emery Simon, Alliance to Promote Software Innovation). It's not clear to me what rights or privileges those representatives envision leaving in public hands beyond the right to purchase access and use licenses if the copyright owners wish to make them available.
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).
"Integrity right" is a term of art for an author's right to object to or prevent mutilation or gross distortions of protected works. See generally Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 GEORGIA L. REV. 1, 15-23 (1988). The Berne Convention, a treaty the United States ratified in 1989, requires its members to protect authors' moral rights, including integrity rights. The United States has relied chiefly on the Lanham Trademark Act, 15 U.S.C. SSSS 1051 -1127 (1994), to fulfill those obligations. The integrity right I propose is probably more consonant with the Lanham Act's approach to trademark issues than the Copyright Act's approach to authorship rights in any event. For a different spin on integrity rights and the Internet, see Mark A. Lemley, Rights of Attribution and Integrity in Online Communications, 1995 J. ONLINE L., art. 2.