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Copyright and Control Over New Technologies of Dissemination
Abstract
The relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. Historically, when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. However, when owners seek instead to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to copyright control over that new market. Today, the courts and Congress regard the unlicensed distribution of works over the Internet as impairing copyright owners' ability to avail themselves of new markets for digital communication of works; they accord control over those markets to copyright owners in order to promote wide dissemination. Copyright control by authors, particularly those excluded by traditional intermediary-controlled distribution systems, may offer the public an increased quantity and variety of works of authorship.
... Witmark & Sons v. L. Bamberger & Co. (1923), Pastime Amusement Co. vs. M. Witmark & Sons (1924, and Jerome H. Remick & Co. vs. American Auto Accessories Co. (1925) -involved copyright infringement and primarily concerned broadcast of music 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 (Ginsburg, 2001). In all these cases broadcasters contested copyright infringement allegations, arguing that their broadcasts of live concerts were not "for profit" as they did not charge their audiences. ...
... Similarly, broadcasters also argued that their broadcasts were not "public" as they were received in the privacy of their audiences' homes. The courts, however, rejected these arguments in favor of the plaintiffs stating there was infringement of music copyrights because a performance by an artist for radio broadcast is "consciously addressing a great, through unseen and widely scattered audience" (Ginsburg, 2001(Ginsburg, : 1620. The second set of early court cases involved rebroadcasting of radio music over closed circuit audio systems in hotels. ...
... The second set of early court cases involved rebroadcasting of radio music over closed circuit audio systems in hotels. One early case, Buck vs. Jewell LaSalle Reality Co. (1931) is particularly illustrative of this (Ginsburg, 2001). In this instance too, Justice Brandeis, commenting on the innovative ways in which radio broadcasting technology was being exploited, remarked that, "while this (form of exploitation) may not be possible before the development of radio broadcasting the novelty of the means used does not lessen the duty of the courts to give full protection to the monopoly of public performance for profit which Congress has secured to the composer" (Ginsburg, 2001(Ginsburg, :1621. ...
... The need to exercise control in this context becomes more acute if digital networks will be the primary distribution channel for content in the future. If so, as Ginsburg (2001) observes, "control over access to digitally distributed works will become the principal way in which exclusive rights are exercised." ...
... If we concede that a property right is a natural entitlement, it is debatable whether creators should be compelled to give up that exclusive right for a compulsory licensing regime in order to advance a new distribution technology such as Napster. This is especially the case because it may still be possible to 'tame' this technology "into copyright friendliness" (Ginsburg 2001). ...
This paper uses two recent works as a springboard for discussing the proper contours of intellectual property protection. Professor Lessig devotes much of The Future of Ideas to demonstrating how the expanding scope of intellectual property protection threatens the Internet as an innovation commons. Similarly, Professor Litman's message in Digital Copyright is that copyright law is both too complicated and too restrictive. Both authors contend that as a result of overprotecting individual rights, creativity is stifled and the vitality of the intellectual commons is in jeopardy. It is difficult to evaluate the claims and policy prescriptions of these books without some appreciation for the moral foundations of intellectual property. The utility and labor desert theories remain the two most prominent in the Anglo-American tradition. After exploring those theories, we argue for a secure regime of protection based on the Lockean vision that property rights are justly deserved as a reward for labor that creates value. However, as Locke's famous proviso implies, even a natural property right is not absolute and must be balanced by regard for the public domain. But a natural right cannot be sacrificed simply to advance technological innovation or to achieve marginal social and economic gains. While we agree with Lessig and Litman that recent legislation goes too far we conclude the essay by attempting to illustrate that some of their policy recommendations err in the opposite direction by underprotecting valid property rights.
... The government has included legal protection for copyright owners whose creations are in digital form in Law No. 28 of 2014 about Copyright and Government Regulation (PP) Number 56 of 2021 concerning Management of Royalties for Song and/or Music Copyrights in national regulations. In accordance with Government Regulation (PP) Number 56 of 2021 on the Management of Song and/or Music Copyright Royalties, if a work is performed in a commercial public space for the purpose of generating additional economic value, the presence of Intellectual Property Rights protection is highly anticipated (Ginsburg, 2017). This copyright law is fairly thorough, and PP No. 56 has now reinforced it. ...
The development of digital technology can be a double-edged knife for the creative industry. It is undeniable that the ease of obtaining anything from internet can lead to a new problem, one of which is copyright infringement. Copyright of digital artworks should be protected since without which it will harm the rights of art workers who upload their works in the internet. The purpose of this research is to discuss and understand the copyright protection for digital artworks as well as some legal remedies that can be taken against infringement of the exclusive rights of the creators. This normative legal research employs statutory and comparative approach. The study shows that although legal protection for digital artworks has been governed under the Copyright Act 2014 (Law Number 28 of 2014 on Copyright), however its implementation but is still lacking and therefore improvement is necessary. In addition, the awareness of art workers about their rights should also be encouraged.
... The 2012 Copyright Modernization Act introduced similar access-based legislation to Canadian copyright law. The interface between copyright and digital software licensing, resulting in Digital Rights Management (DRM), has seen the criminalization of previously legal uses, such as re-sale and repair of legally obtained products (Ginsburg 2001(Ginsburg : 1635Johns 2009: 506;Patry 2009: 161). ...
... Ownership could thereby be falsely assigned to more than one party or revoked too soon. In traditional systems, courts are involved in resolving such conflicts [43], [44]; on blockchains, however, there is a need to identify actors who resolve conflicts when multiple users claim for the same property. ...
The blockchain comes with the promise of being a disruptive technology with the potential for novel ways of interaction in a wide range of applications. Although scholarly interest in the technology is growing, a broad analysis of blockchain applications from a governance perspective lacks to date. This research pays special attention to the governance of blockchain systems and illustrates core governance decisions on 15 blockchain systems from four application domains. Based on academic literature, semi-structured interviews with representatives from those companies, and content analysis of grey literature, different blockchain governance decisions have been derived and their enactment described. The identification of them enriches the scarce body of knowledge on blockchain systems with a better understanding of how key governance decisions are enacted in practice.
... Some of the criticisms were levelled at the unfair protection of IP tilted towards the recording industry. Ginsburg (2001) points out that legal decisions surrounding copyright have been interpreted in favour of giving control over the market to authors or artists. She contends that copyright control by authors should take into account the fact that unlicensed distribution of works could benefit the public by offering more and diverse creative works. ...
This chapter examines the dominant discourses surrounding the digital recording industry. It first demonstrates the evolution of the recording industry in the context of technological advances, intellectual property (IP) and organisational practices. I then extend the view to the perspective of the entire network of the recording industry and discuss a broader range of settings for innovation and a wider array of players involved in the recording industry in pre-digital settings. This chapter finishes by outlining existing views on the digitalisation of music in three dimensions: the techno-centric dichotomy in understanding the digital recording industry, the discourse of P2P technology’s impact on the market and the technological trajectory of P2P technology that has deviated from the prediction.
... (Stanford's Entrepreneurship Corner (2014), sampled 15 February 2016 The end result was the "disconnect" between the way consumers behave online and the way copyright has historically been regulated. That is, the clash between online behaviour and compliance with legal regulation was conflated with the mismatch between socio-technological change and the legal path (Ginsburg 2001;Vaidhyanathan 2001;Lessig 2004;Larsson 2011). The battlefield of music was in a stalemate where neither side was ready for a compromise or surrender. ...
This chapter follows on from the previous chapter’s discussion and provides an in-depth analysis of how Spotify found a solution to the digital recording industry’s financial woe persisted since Napster. It examines how this successful legitimate digital music service innovation arose in the least likely place, Sweden, the hotbed of piracy, and addresses major attributes that brought victory to Spotify over the then seemingly unflinching popularity of P2P file-sharing. I continue the discussion on the changing dynamics brought by Spotify and some of the concerns emerging around this new digital music consumption platform.
... Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent "Copying" is used in this context as a short---hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act (Copyright Summary.1998). However, some scholars argues that even though the DMCA have enhanced the ability of copyright owners to wield electronic protective measures to control new kinds of exploitations, the goal of copyright law should not be control over works of authorship (Ginsburg, 2001). ...
... Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent "Copying" is used in this context as a short---hand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act (Copyright Summary.1998). However, some scholars argues that even though the DMCA have enhanced the ability of copyright owners to wield electronic protective measures to control new kinds of exploitations, the goal of copyright law should not be control over works of authorship (Ginsburg, 2001). ...
... The commercial study gave widely priority and, mostly, turned to specific questions and cases having to do with the economic impact of the music downloading (Edison Media Research, 2002;Jupiter Research 2002). The studies dealt with the download from its legal side, focus on cases referring to copyright protection of music downloaded from the Internet (Barker, 2004;Ginsburg, 2001;Graves, 2004). ...
Many aspects of the use and content of the Web have been empirically investigated. However,
the issue of downloading music and other types of files from the Internet has not been yet widelyresearched, and moreover with a sample of Greek students. The basic purpose of this study is to search whether Greek students download files from the Internet, what kind of files they prefer to download, why they started to download pirated software, if they know that it is an illegal action and whether they care accepting some ethical implications of the problem and as well as and how they consider that there is a social impact. In general, the purpose of the study is to study the pirate download as implemented by Greek students in practical, moral and social level, The study’s sample was consisted of 200 undergraduate and postgraduate students from all Universities and Technological Greek Institutions.
... Inquiries into music downloading have followed primarily three paths: cultural, commercial and legal.The cultural inquiries emphasize the phenomenon as a musical component of cyberculture and explore the representation and meaning of Napster-like services (Taylor et al., 2002). The commercial research has been largely proprietary and frequently geared toward answering specific questions related to the economic impact of music downloading (Edison Media Jupiter Research 2002).The legal studies focus on the implications of copyright protection of downloaded music (Barker, 2004;Ginsburg, 2001;Graves, 2004).The goal of the current study is to complement existing research by examining three aspects of music downloading engaged in by college students: ...
The objective of this study is to understand the gratifications behind music downloading among college students, and examine how the gratifications along with music interest are associated with a variety of downloading-related activities.The results suggest that the process of downloading music files is an entertaining and convenient way to acquire music.The downloading motives were not linked significantly to filesharing (uploading as well as downloading music). However, entertainment/pass time, convenience/economic utility and information-seeking factors and experience were predictors of building a library of music on one's computer. Males reported having more songs stored in their computers than females and were more likely to burn compilation compact discs (CDs) with the music files they downloaded. Affinity for music was not associated significantly with any of the downloading activities examined, but was positively associated with CD purchasing.
... But in a world where every new feature of technology incorporates copyrightable software, the breadth of the DMCA statute language animates legal claims against any interoperation that could be characterized as "unauthorized access" to such code (Burk, 2005). And, even if limited to the traditional artistic subject matter of copyright, anticircumvention laws confer upon content owners a degree of control over creative works never attainable under the traditional copyright regime (Ginsburg, 2001). ...
The 1998 enactment of the anticircumvention provisions of the Digital Millennium Copyright Act in the United States amended the Copyright Act to prohibit disabling or circumventing technical protection of copyrighted works. Consequently, over the last decade, the development of copyright law has been inextricably intertwined with the development of “digital rights management” (DRM) systems, intended to protect digital content, and the laws that were intended to safeguard DRM systems. In this paper, I review the interconnection of copyright and DRM, arguing that DRM constitutes a conscious attempt to re-impose upon digital works the material exclusion that has been lost through digitization. Pre-determined material affordances are re-inscribed on digital content through discursive DRM technology. DRM imposes pre-determination of use and access on creative works, which is reinforced by anticircumvention laws. Pre-determination, however, imposes unexpected constraints on the use of creative works, limiting the prospects for creative interaction with secured texts.
Copyright law has an ambiguous relation with freedom of expression. On the one hand, copyright law protects the free expression of creators by ensuring that they reap the benefits of their own work. Without the existence of copyright law, any creator would fear the appropriation of her work by others. Copyright allows artists to express themselves without worrying about the potential reproduction of their words, art or music.1 On the other hand, as is often noted, copyright law restricts the form that expression might take by forbidding the free use of copyrighted materials. In a rapidly changing environment with new technologies, it is not only the enforcement of copyright that has been put into question but also its moral legitimacy (Davies, 2002, p. 32). The conflict between freedom of expression and copyright raises a number of important normative issues. Not all of them can be addressed in this chapter. In particular, I will not address here the important normative issues raised by the direct copyright control that some corporations assert over the use of cultural and intellectual works.2
KeywordsIntellectual PropertyPrima FacieTrade MarkFree SpeechLiberal TheoryThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
Since the popularity of the Internet, more and more people have chosen to look for the information and resources they need on the Internet. People’s lives have gradually been changed by the Internet. Cloud storage brings new development opportunities, and the copyright protection issues involved in cloud storage are gradually emerging. Cloud storage has changed the original pattern among traditional information owners, disseminators and users, causing conflicts among copyright owners, cloud storage servers and information acquirers, and the problem of copyright protection has become increasingly prominent. The rapid development of network file sharing platforms such as cloud storage brings unprecedented challenges to copyright protection. The application and development of cloud storage also challenges the recognition of traditional copyright system, object and content, so we must balance the contribution of cloud storage to the exchange of information resources and protect the legitimate rights and interests of copyright holders.
Copyright and technology have a long and intertwined history during which both have felt their influence on each other. The exclusive rights of reproduction and distribution given to the creators of artistic and literary works today to are very different from what they were 500 years ago when this relationship began.
Copyright developed as a direct consequence of the invention of the printing press. Before its invention, the principle protecting author’s rights did not exist because the mass reproduction of literary works was not possible. Gutenberg’s invention of movable type, however, revolutionised the industry and the stationers in England moved from reproducing single volumes by hand to producing many more copies to match the growing demand resulting in books gaining significant financial value. Value that was difficult to access by the authors of the books until 200 years later when the Statute of Anne, in an effort to encourage the sustained production or original works, granted the authors exclusive rights to their works and started the whole copyright story.
Modern national copyright legislation has evolved with different influences throughout history. However, as the world continued to develop and cross border activity flourished national copyright legislation was not sufficient to govern what had become a global concern. International agreements were developed over time that reacted to technologies influence on copyright while, at the same time, setting the baseline for national copyright legislation to grow around. The Berne Convention remains the most important international agreement on copyright and most national laws and international instruments have developed with reference to it.
Following the age of the printing press, the next major technologies to influence copyright were the new recording and broadcast technologies; bringing with them revolutions that forced major shifts in copyright legislation in its efforts to curb infringement. The current digital era poses the biggest challenge copyright legislation has had to face in its history with technology enabling copyright infringements of a scale by far exceeding all other periods combined.
A lot of laws and litigation have marked the path leading up to the situation today, with many remedies proving ineffective in reversing the scale of copyright infringement. It is time that the copyright industry stopped fighting new technology and realise that their survival might depend on finding new business models that incorporate technologies like P2P networks into their strategies.
The previous chapter discusses under what circumstances a hosting ISP meets the threshold of “safe harbor” provisions. This chapter will discuss how the courts in the US, EU and China to decide hosting ISPs’ secondary liability under the roof of the “safe harbor” provisions. In the light of “safe harbor” provisions, a hosting ISP who complies with certain requirements can be exempted from paying monetary damages. However, regarding the other kind of reliefs, such as injunction, “safe harbor” provisions cannot immunize hosting ISPs from them. Therefore, even though a hosting ISP fully complies with liability exemption conditions set in “safe harbor” provisions, it may still face liabilities other than paying monetary damages according to the traditional liability rules. Besides, as was mentioned in the end of Chap. 2, when interpreting “safe harbor” provisions, the courts cannot avoid being affected by traditional liability rules, so even though the US, EU and China have reached certain harmonization in the respect of “safe harbor” provisions, in light of case law, the secondary liability rules of hosting ISPs are still diverse in the US, EU and China. This chapter will take a comparative approach to examine the hosting ISPs’ secondary liability for copyright infringement on their platforms in the US, EU and China.
The information network, particularly the Internet, makes it much easier to disseminate information. With the rapid development of ICT and information networks, new forms of copyright products are becoming a part of daily life. For instance, software has been greatly improved so MP3s and DVDs can be played on a variety of multimedia platforms. At the same time, conventionally printed copyrighted material such as books and periodicals remains an important source of reliable information for education and research.
This chapter provides a theoretical and historical background about copyright and examines relevant key concepts such as information and knowledge, as well as the public interest. It first examines major theories regarding copyright and then reviews the historic developments at the national, regional and international levels. This is followed by an analysis of the relation between copyright protection and the circulation of information. Finally, the public interest concept is examined for it is the framework employed to determine the basis on which copyright limitations and exceptions have been granted.
The relationship between hacking and the law has always been complex and conflict-ridden. This book examines the relations and interactions between hacking and the law with a view to understanding how hackers influence and are influenced by technology laws and policies. In our increasingly digital and connected world where hackers play a significant role in determining the structures, configurations and operations of the networked information society, this book delivers an interdisciplinary study of the practices, norms and values of hackers and how they conflict and correspond with the aims and aspirations of hacking-related laws. Describing and analyzing the legal and normative impact of hacking, as well as proposing new approaches to its regulation and governance, this book makes an essential contribution to understanding the socio-technical changes, and consequent legal challenges, faced by our contemporary connected society.
Since of the very beginning of the modern copyright law era, the exclusive right of reproduction has been an integral part of copyright law. However, among the fundamental concepts of copyright, it is perhaps the least suitable for the digital environment due to its technical-functional nature. Flexible, principle-oriented regulation enabling context-sensitive outcomes and balancing of interests is needed in European copyright law. In this respect, often suggested solutions such as a fair use exception or the implied licence doctrine might not create enough adaptability; whereas, a better solution would be to reform the fundamental structures of copyright law. Even though achieving any radical changes to international conventions might not be realistic, this article attempts to find an alternative approach to the concept of reproduction. Structural rather than substantive elements as substitutes for reproduction could be derived from the context of modern trademark law. Such an approach would be consistent with the existing weak signals on convergence between the branches of industrial property law and copyright. As a structural adoption, a formulation stressing the legitimate interests behind the protection and consequences of utilisation of the protected object for these interests could be used in copyright law. One possibility would be a flexible instrument by which it would be evaluated whether the utilisation of copyrighted work affects, or is liable to affect, the legitimate interests of the right holder or alternatively if the utilisation follows honest practice in the particular sector of the creative industry.
Twenty years after the initial wave of national and international activity outlining the role of copyright within the world’s first digital communications policy, the contours of a few fundamental policy principles at the intersection of copyright law and Internet regulation have begun to take shape. This paper focusses its attention on the continuing development of one such principle: The premise that legislatively mandated limitations on internet intermediary liability with regard to third party acts of copyright infringement (so-called safe harbors) are required to promote investment and innovation in Internet-related infrastructure and technology in order to achieve the goal of a robust public information environment.
The widespread copyright infringement that the internet and personal computers have engendered has led copyright owners to sue software and service providers as facilitators under theories of secondary liability. The most prominent lawsuits have been brought against vendors of peer-to-peer file sharing software-Napster, Aimster, and Grokster-who have been held liable under the judicial doctrines of vicarious liability and contributory infringement for the copyright violations committed by their users. Although these secondary liability doctrines are well established in copyright law, the Napster and Aimster decisions have expanded the role that illicit intent to profit from others' copyrighted works plays in determining liability. The expanded scrutiny of intent makes it difficult for developers of copying and distribution technologies to predict their potential liability and undermines the limited immunity for the development of useful technologies that the Supreme Court established in its Sony decision. This Note argues that the Supreme Court's promulgation of its inducement doctrine in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. obviates the need to expand the role of illicit intent in vicarious liability and contributory infringement. The Courts inducement rule effectively plugs the gaps in the existing secondary liability doctrines without the attendant adverse effects of the expanded scrutiny of intent.
Supposing however that the Act [at issue] had said in terms, that though a person sued in the island [of Tobago] had never been present within the jurisdiction, yet that it should bind him upon proof of nailing up the summons at the Court door; how could that be obligatory upon the subjects of other Countries? Can the island of Tobago pass a law to bind the rights of the I whole world? Would the world submit to such an assumed jurisdiction?(1) [This] is a plea to grant all collective behavior entailing systematic understandings of our commitments to future worlds equal claim to the word "law." The upshot of such a claim, of course, is to deny to the nation state any special status for the collective behavior of its officials or for their systematic understandings of some special set of "governing" norms. The status of such "official" behavior and "official" norms is Dot denied the dignity of "law." But it must share the dignity with thousands of other social understandings. In each case the question of what is law and for whom is a question of fact about what certain communities believe and with what commitments to those beliefs.(2) Citizenship ought to be theorized as one of the multiple subject positions occupied by people as members of diversely spatialized, partially overlapping, or nonoverlapping collectivities. The structures of feeling that constitute nationalism need to be set in the context of other forms of imagining community, other means of endowing significance to space in the production of location and "home."(3) In this context, what we need-we, who aspire to be academics, who aspire to work things out-is permission to work things out freely. We need a space where we can experiment with ideas without condemnation reigning [sic] down around us.... [T]his is cyberspace, where no one has the right to declare truth is on their side; and where no one should claim the right to condemn. This is a space where we need the space to try out different, and even heretical, ideals. In this space, the heroes will be lunatics... or crazies....... We need to imagine these problems differently, and we need to encourage people to imagine them differently.(4)
One of the most significant court decisions in copyright law has been the United States Supreme Court's decision in
Feist Pub., Inc. v. Rural Tel. Serv. Co.
, and its path-breaking approach towards the requirement of originality. The grant of copyright protection, in an intangible work, is conditioned upon the fulfillment of the prerequisite of originality. Until the Feist decision, Anglo-American copyright law had a long tradition of interpreting the requirement of originality as imposing a minimum standard of labor, skill or judgment in the production of a work that is not a copy of another work. In
Feist
, a watershed decision, which had international impact and influence, the United States Supreme Court first introduced the requirement of
creativity
into Anglo-American copyright law. According to the court's ruling, only works that entail a minimum standard of creativity could pass the threshold of originality and therefore be eligible for copyright protection.
Twenty years ago the recording industry alleged consumers were killing music sales by recording their own cassette tapes at home. Today, this argument is directed at peer-to-peer (P2P) networks: Illegal file-sharing kills the sales of recorded music. In an effort to determine copyright law's affect on innovation in peer computing, this Note examines the recording industry's response to P2P networks. The recording industry employs five strategies: (1) public education; (2) licensed online music subscription services: (3) warnings, injunctions, and enforcement; (4) Digital Rights Management; and (5) lobbying Congress for expanded copyright protection. However, the industry's strategy also chills investment in peer computing and drives development in unpredictable directions. While P2P networks are rife with copyrighted works. innovative uses of peer communication arc also reshaping how Americans consume and distribute content. In many ways, innovation in peer computing might determine the future of communication. The recording industry and Congress have a choice: shape a future for peer computing, or eliminate a novel form of communication.
Recently, in Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada [ESA],2-Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada [Rogers]3and Society of Composers, Authors and Music Publishers of Canada v Bell Canada [Bell],4the Supreme Court of Canada dealt with the issue of how copyright law should treat competing disseminators of copyrighted subject matter.5As the Court recognized, copyright law can impose costs on those who provide new forms of dissemination technology that don't apply to incumbent disseminators, even where the new forms are more efficient.6In order to deal with this problem, it applied a principle of technological neutrality, which requires, in one formulation, that, in the absence of evidence of contrary intent expressed by Parliament,7"the Copyright Act apply equally between traditional and more technologically advanced forms of the same media...."8Applying that principle in ESA, the Court held that technological neutrality requires avoiding the imposition of additional copyright royalties "based solely on the method of delivery of the work to the end user".9While this principle advances the law about how copyright applies to competing disseminators, the judgment raises an issue about whether new amendments to the Copyright Act10that prohibit the circumvention of technological measures that protect copyright (technological protection measures, or TPMs) are consistent with the principle of technological neutrality, as they allow copyright owners to favour their own dissemination technology over that of competing disseminators.
Expansion and Indeterminacy The Metaphysical Club Towards Other Narratives Identifying the Ages of American Intellectual Property Law New Directions References
Copyright law has become the subject of general concerns that reach beyond the limited circles of specialists and prototypical rights-holders. The role, scope, and effect of copyright mechanisms involve genuinely complex questions. Digitization trends and the legal changes that followed drew those complex matters to the center of an ongoing public debate. This book explores theoretical, normative, and practical aspects of premising copyright on the principle of access to works. The impetus to this approach has been the emergence of technology that many consider a threat to the intended operation, and perhaps even to the very integrity, of copyright protection in the digital setting: It is the ability to control digital works already at the stage of accessing them by means of technological protection measures. The pervasive shift toward the use of digital technology for the creation, dissemination, exploitation, and consumption of copyrighted material warrants a shift also in the way we perceive the structure of copyright rules. Premising the copyright order on the concept of digital access first calls for explaining the basic components of proprietary access control over information in the abstract. The book then surveys recent developments in positive law, while showing how the theoretical access-right construct could explain the logic behind them. Finally, the book critically analyzes existing approaches to curbing the resulting problems of imbalance and overprotection, which are said to disadvantage users. In conclusion, the book advocates for a structural overhaul of our current regulative apparatus. The proposed reform involves a series of changes in the way we define copyright entitlements, and in the way in which those entitlements may interrelate within a single, coherent scheme.
Winner of the 2008 Donald McGannon Award for Social and Ethical Relevance in Communications Policy Research given by the Donald McGannon Communications Research Center at Fordham University. In this enlightening book James Boyle describes what he calls the range wars of the information age-today's heated battles over intellectual property. Boyle argues that just as every informed citizen needs to know at least something about the environment or civil rights, every citizen should also understand intellectual property law. Why? Because intellectual property rights mark out the ground rules of the information society, and today's policies are unbalanced, unsupported by evidence, and often detrimental to cultural access, free speech, digital creativity, and scientific innovation. Boyle identifies as a major problem the widespread failure to understand the importance of the public domain-the realm of material that everyone is free to use and share without permission or fee. The public domain is as vital to innovation and culture as the realm of material protected by intellectual property rights, he asserts, and he calls for a movement akin to the environmental movement to preserve it. With a clear analysis of issues ranging from Jefferson's philosophy of innovation to musical sampling, synthetic biology and Internet file sharing, this timely book brings a positive new perspective to important cultural and legal debates. If we continue to enclose the "commons of the mind," Boyle argues, we will all be the poorer.
The internet belongs to that important group of phenomena that require a fundamental rethinking of law and its ultimate change. The rules made for printed media could not be applied to radio or television when they appeared. Traditional regulatory models for electronic communication arguably cannot be carbon-copied into the Internet world. Like other revolutions brought about by science, the Internet does not lend itself to current regulatory models but requires their rethinking.
Should the law secure to copyright owners control over new technological uses of their works? Or should the law leave technological innovators free to explore and exploit such uses? The greater control afforded to copyright owners, the greater the incentive to produce content, but also the greater the disincentive to produce better technologies to enjoy it. This Article studies the degree to which protecting copyright owners or technological innovators by property rules or liability rules over new technological uses of content would drive members of each group to invest desirably in their respective creations and in reducing the interference between their activities. The Article offers three major contributions: (1) it assesses the degree to which different entitlements promote authorship and innovation as well as investments to minimize the interference between them, (2) it shows that a property rule in technological innovators might drive them to harm copyright owners intentionally, and (3) it suggests a way of modifying legal entitlements that can improve copyright owners and innovators’ incentives to invest.
Although the "technological arms race" has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are "technological" arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down?
In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on the particular audience profile consuming the relevant asset. Authors can most cost-effectively manage access through a mixture of these two tactics. Given the attributes of the parties competing over use of and access to expressive assets-authors and consumers-one should expect to observe sustained racing behavior. Such racing constitutes an undesirable exercise in inefficient wealth-redistribution, eroding the benefits of authors' traditional ability to choose the lowest-cost, most effective mix of copyright enforcement and self-help. Although the proposition that copyright protection substitutes for self-help is not a new one, the precise ways in which it does so--as well as the inefficiencies associated with arms races-remains dramatically under theorized.
Legal rules should seek to minimize wasteful investment in protection and circumvention measures, but citing the Digital Millennium Copyright Act (DMCA) as the first institutional attempt to do so is misleading. For some time, courts and legislatures have addressed racing behavior over a variety of intangible assets copyrightable expression, patented inventions, and unprotected information. This sample of institutional responses reveals an identifiable pattern of controlling technological arms races, one to which the DMCA largely conforms.
Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way of speech that would build upon existing expression to convey new messages and artistic perspectives.
In a seminal 1970 article, Melville Nimmer, the leading copyright and First Amendment scholar of his day, aptly termed the copyright‐free speech conflict a “largely ignored paradox.” Yet today that conflict has come virulently to the fore, and copyright is increasingly chastised as a tool of private censorship.
Why has that happened? What values and practices does the copyright‐free speech conflict put at stake? How should the conflict be resolved?
These are the principal questions this book seeks to answer. This book explores the copyright‐free speech conflict as it cuts across traditional and digital media alike. In so doing, it juxtaposes the dramatic expansion of copyright holders' proprietary control against individuals' newly found ability to digitally cut, paste, edit, remix, and distribute popular sound recordings, movies, TV programs, graphics, and texts the world over. It tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and assesses how copyright does—and does not—burden speech. Taking First Amendment values as its lodestar, the book argues that copyright should be delimited by how it can best promote robust debate and expressive diversity, and it presents a blueprint for how that can be accomplished.
This paper aims to examine some of the broader social consequences of enabling digital rights management. The authors suggest that the current, mainstream orientation of digital rights management systems could have the effect of shifting certain public powers into the invisible hands of private control. Focusing on two central features of digital rights management - their surveillance function and their ability to unbundle copyrights into discrete and custom-made products - the authors conclude that a promulgation of the current use of digital rights management has the potential to seriously undermine our fundamental public commitments to personal privacy and freedom of expression.
[Note: the substantially revised published version of this article is available at www.ssrn.com/absract=489762] This article questions whether copyright law's prohibition against unauthorized copying and sales is either necessary or beneficial to the production and dissemination of creative content. Building on the thesis of Stephen Breyer's 1970 Harv. L. Rev. article, The Uneasy Case for Copyright, it questions the necessity of copyright by carefully identifying and explaining how new technologies and social norms provide many viable business models for financing new creations without the need for the current broad copyright protection. More significantly, it contends that, in the current lottery-like media entertainment environment, the higher revenues that copyright law enables the most popular creations to generate are generally dissipated on promotional efforts (rent seeking), which tend to drown out marginal creations. Thus, current copyright law may actually reduce the production of new creations. As background, the article reviews the six categories of costs that must be covered to enable content to be published effectively.
Copyright law's principal justification has for long been the theory of creator incentives. Creators are presumed to be rational utility-maximizers and therefore induced to create by the mere prospect of controlling a future market for their yet-to-be-created works. Yet, current copyright doctrine does surprisingly little to give effect to this theory. None of its current doctrines enable courts to circumscribe a creator's entitlement by reference to the idea of incentives and the limitations inherent therein. As a consequence, copyright's grant of exclusivity is presumed to extend to all markets and uses for a work, whether or not they were capable of forming any part of a creator's incentive. Through its allocation of costs and benefits, the common law too relies on providing actors with incentives to behave in certain ways. Unlike copyright law however, the common law recognizes the existence of a clear outer limit to its incentive structure and attempts to give effect to this limit through the concept of 'foreseeability'. Premised on the idea that individuals do not process consequences that are temporally or causally far removed from their actions, foreseeability requires courts to eliminate from the liability calculus certain low-probability occurrences when they are unlikely to have influenced an individual's decision at the time of action. Foreseeability thus represents a cognition-based doctrinal limit to the behavioral modification that the common law attempts to induce. This Article argues that if copyright law is to remain true to its theory of incentives, it needs to pay closer attention to the way in which incentives actually influence creative decision-making and internalize the idea that creators, like actors elsewhere, are incapable of fully anticipating all future contingencies associated with their actions, that in turn limits the effectiveness of incentives. To this end, it proposes a test of 'foreseeable copying' to limit copyright's grant of exclusivity to situations where a copier's use was reasonably foreseeable to the creator at the time of creation --the point when the incentive is meant to operate. Adopting a test of foreseeability is thus likely to better align copyright law with its underlying purpose and provide courts with a mechanism by which to give effect to copyright's theory of incentives in individual cases --thereby according it more than just rhetorical significance.
In deliberating passage of the Digital Millennium Copyright Act, everyone on both floors of Congress decried something that they labeled "the specter of a 'pay per use' world." In other words, both Congressmen and Senators paid lip service to the need for a robust sector of fair use and free commentary, a realm over which copyright owners would be able to exert no control. This article tests Congress' stated goals against its handiwork. The article concludes that, pious rhetoric aside, there are profound concerns that Congress failed in its goal to create legal safeguards against a "pay per use" world.