Academic journal article Albany Law Review

Living without Copyright in a Digital World

Academic journal article Albany Law Review

Living without Copyright in a Digital World

Article excerpt

The title of this paper, Living without Copyright in a Digital World, could be understood in two ways: first, as a functionally accurate description of our current condition, and, second, as a normative statement about where we ought to be going. I mean it to be both. In choosing the title, however, I recognize its potential to raise the hackles of some readers. In what Jessica Litman has called the Copyright Wars, (1) provocative titles and statements have often been thrown out by copyright skeptics, and the copyright bar and industries have instinctively struck back, assuming that anyone who casts doubt on copyright's utility in cyberspace must be a radical, a lunatic, or a simple apologist for theft.

But my hope is to get by the history of irritation and misunderstanding and open what I honestly believe is a long-overdue conversation--a serious discussion among all interested parties about how best to manage the period of great upheaval that our ability to distribute communicative works digitally has caused. I do not claim that anything I will say here is new; rather, the modest aim of this essay is to re-contextualize what we all know in a way that will allow people, whatever their positions, to abandon the battle lines, recognize the extent of the common ground, and begin to think out some of the problems in a spirit of cooperation rather than confrontation.

Let me begin with a clarification, or if you prefer, a caveat. When I talk about living without copyright, I do not want to be understood as saying, "Get over it--there is no place for intellectual property law in cyberspace." That could turn out to be true, but I am agnostic on the question at present. What I do mean to suggest, however, is that if we do have intellectual property law for the cyberspace of the future, it will--or, at least, should--be quite different from the general system that currently governs owners and users of communicative works in the analog world.

Having said this, I would like to identify what I referred to earlier as some of the common ground shared by copyright minimalists, maximalists and outright skeptics alike. These are a few home truths that virtually everyone in the field recognizes, even if some don't like to admit it. First, traditional copyright law is simply not up to the job we have tried to assign it in cyberspace. That is not a conclusion that many wanted or expected to reach. It has been hard to abandon the hope that, with just a little tweaking, traditional copyright rules could successfully be ported to the Internet the way they were to other new communications technologies, such as film and television that preceded it. The hope is understandable because the copyright system did manage for three tumultuous centuries of change to maintain a reasonably fair and workable accommodation between needs of users and producers of speech goods. Sadly, hope and reality often do not mesh.

That brings me to the second point of commonality: if one looks at the situation on the ground, it seems that, as a descriptive matter, copyright for digital works has by now become beside the point to owners and users alike. The essence of traditional copyright is that it lodges with owners the right to control copying; the logic of the law suggests, therefore, that each time one user transmits a copyrighted digital file to someone else, an event has occurred that requires the permission of a copyright owner, and, quite possibly, payment as well. This logic, however, is entirely out of synch with the way users think about their own rights to use and disseminate digital works. (2) To borrow again from Professor Litman, to users sharing is not stealing. (3) It is legitimate activity--the chief benefit, in fact, of electronic storage and transmission.

To a user, it is not theft to multiply copies without consent in order to space- and time-shift access to legitimately obtained music or video, or to share a copy with a friend. …

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