Living without copyright in a digital world.

• Author: Zimmerman, Diane L.
• Position: Symposium: Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protection of Intellectual Property

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. Nor does the noncommercial user think of herself as "stealing" from a copyright owner when she reuses parts (even extensive parts) of protected works to make her own creations. The availability of works in digital form, of new digital tools, and of instant communication invite people to play with, collaborate in remaking, and sharing the creations of others in ways that were unimaginable in the more static analog universe. As Rebecca Tushnet has documented, the Internet is now full of fan fiction, (4) not to mention music mash-ups (5) and fan videos. (6) Again, it is important to re-emphasize that I am not talking now about the activities of commercial pirates, or even about those who, with or without commercial motivation, set up open peer-to-peer sites that facilitate massive uploading and downloading of unlicensed content. I am talking about what ordinary people, with an intact sense of honor, think are acceptable ways to behave in a digital universe.

Of course, digitization has also enabled the kind of massive copying that owners understandably fear will destroy their traditional commercial markets. Making and transmitting content digitally is both cheaper and easier than pirating materials in hard copy, and far more resistant to control. To complicate matters, digital infringement is often not the purview of those who are in it for profit (as is virtually always the case in commercially significant analog copying (7)); many have entered the fray as a kind of game, for the thrill of defeating technological efforts to thwart access or simply to challenge what they perceive as "greedy" copyright owners.

Faced with abundant instances both of massive and more individualized copying, content producers continue to utilize rhetoric that celebrates the importance of copyright in cyberspace; but when they vote with their feet, they are tending to walk in some very different directions having little if anything to do with copyright. As I see it, there are now four general strategies for using the Internet to disseminate content: I will call the proponents of these strategies the Naysayers, the Locksmiths, the Subverters and the Explorers. While individual entities may mix and match aspects of these approaches to suit their own needs, the categories remain sufficiently distinctive to stand on their own as analytical categories.

The Naysayers are those who have decided pretty much to stay away from the Internet as a method of distributing content (although they may use it to advertise or to sell hard copies). They do not believe that copyright can protect digital versions of their work, and they are frankly not sure what else will. Although the true Naysayer is probably the rarest avis in the nest, the category has historically included the entire recording industry. Not until Apple was able to convince the industry that iTunes was a better bet than unlicensed peer-to-peer file sharing did efforts to sell music on line finally get started. (8) But the Internet continues to be unappealing to many with valuable intellectual products to sell. If you don't believe me, just try to find a legal site from which to download the Beatles' music. (9)

Many popular books, too, can only be had in hard copy (or possibly as recordings on CD-roms). While publishers may still have some uncertainty about consumer acceptance of e-books, those doubts are not the only reason they have hesitated to distribute texts in digital form. (10) The publishing phenomenon of the last decade, the Harry Potter series, can be downloaded on]y through pirate sites. J.K. Rowling is happy enough to have her books advertised on the Internet, but will not permit the books to be distributed over it. (11) Note also the care Google has taken to reassure its prospective publishing "partners" for Google Book Search that, if they join the program, they will nevertheless retain complete control over whether to distribute their books in hard copy or electronic form. (12) Naysayers, in short, cast their vote against copyright in cyberspace by simply not being there.

The Locksmiths are a more numerous clan. They may actually like the strategic benefits of having copyright in their back pockets, both for its legitimating and its in terrorem effects, but they clearly think of it as the tool of last resort for protecting their intellectual property. These producers and distributors place their faith, instead, in contract law and a variety of technology-based devices. Locksmiths love shrink- and clickwrap licenses, and were supporters of the now-aborted Uniform Computer Information Transactions Act (UCITA); (13) Locksmiths also have flocked to adopt digital rights management technologies (DRMs) (and fought to protect them by urging Congress to pass the Digital Millennium Copyright Act (14) (DMCA)). Whatever else you might want to say about these various devices, you would never characterize them as tools of copyright. What each of them does is allow content providers unilaterally to build in terms of use that are crafted to the producer's (rather than to the Copyright Act's) specifications. (15) These approaches may simply bypass the limits on proprietors' rights imposed by copyright law, like the first sale (16) and fair use doctrines, (17) and in doing so may also ignore the user's claims to some level of Internet privacy. (18)

Whereas copyright specifies what users may and may not do with the content they acquire, things like DRMs may also require users to be wedded, whether they like it or not, to specific platforms or equipment if they want the works they acquire to be audible, visible or otherwise useable. Thus, the incorporation of an encryption tool called CSS (for content scrambling system) to protect digital video disks shuts out Linux users from enjoying movies on their computers; (19) similarly, as a by-product of the desire to protect digital music with DRMs, owners of iPods cannot use them to play encrypted music they download from rival...