Author:Hunter, Dan
Position:Enforcement of copyright laws on information technology


Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. Our focus on copyright's recent history, however, blinds us to the social information practices that have always existed. In this Article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with the creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. All of the functions that copyright industries once controlled, however, are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disaggregated groups. This raises an issue for copyright as the main regulatory force in information practices: copyright assumes a central control requirement that no longer applies for the development of expressive content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably, we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.

TABLE OF CONTENTS INTRODUCTION I. COPYRIGHT AND INFORMATION POLICY A. Copyright's Theory of Information B. Copyright Creation and Technologies of Fixation C. Copyright and Technologies of Infringement II. CONTENT AND COPYRIGHT A. The Content Functions 1. Creation a. Digital Technology and Expensive Authorship b. Cheap Authorship and Prior Works 2. Selection 3. Production 4. Dissemination 5. Promotion 6. Purchase ad Use B. Decentralization and Revolution 1. Dead Industries 2. The Big Shift III. THE PROBLEM WITH COPYRIGHT IV. AMATEUR-TO-AMATEUR INTRODUCTION

Copyright law today is like Rome at the height of its Empire. (1) Rome was once the center of the world, and the Roman Empire stretched from Syria to Britain, practically to the limits of the imagination. Over the course of centuries, Rome had expanded its borders until it influenced a vast multitude of diverse societies. Roman control lasted for centuries, but eventually Rome fell when the barbaric Visigoths stormed Rome's gates in 410 A.D. Many surely saw the sack of Rome as the end of culture and civilization, yet one could also frame it not as a fall, but as a transformation. Rome's empire became a less unified set of social groups, states, and governments.

Like the Roman Empire, copyright's legal empire has expanded aggressively in the last few centuries and it now dominates a vast terrain of social information practices. From relatively humble origins in regulating book-printing monopolies, copyright has grown to encompass a range of activities involving the production, reproduction, distribution, and use of information. (2) Yet copyright remains by and large imperial Copyright specialists and stakehomers, not the public, have been responsible for the historic shape and enforcement of copyright laws, and these laws have grown to be largely inscrutable to the greater public. The citizenry, in the view of copyright's shareholders, are merely passive beneficiaries of copyright's regime, and are described as "readers," "viewers," and]or "consumers" of content, the product that copyright specialists create. The fact that the greater populace has had little reliable knowledge of copyright law has not been overly significant--the public has not been understood as part of content-production processes. (3)

Like the Roman Empire before it, copyright finds itself today under threat from its borders. The former subjects of copyright are increasingly aware that they are being taxed by copyright, but they have only a vague notion of how allegiance to copyright benefits them. This change in the status quo is largely attributable to the fact that copyright's formerly passive consumer is increasingly an active participant in content-production processes. The average citizen now feels copyright law intruding on her personal information practices. Part of this friction is due to technological changes, but part of it is also attributable to copyright's extraordinary scope. The two, as we discuss below, are indeed closely related. Whatever the root of the current friction, it is true that the populace today, more than at any time previously, is a player in the copyright process. The public is creating, selecting, distributing, and recasting information, and is increasingly being policed and monitored pursuant to copyright laws. (4) Our goal in this Article is to describe how copyright's former consumers are now the creators, producers, and disseminators of content, and to puzzle out what this might mean for our system of copyright.

As an initial matter, we should explain our terms. Many copyright scholars, including the authors, have spoken of copyright "consumers" engaged in the consumption of information "content." (5) It may be more appropriate to say that information consumes us, not vice versa. Advertisements, publications, television programs, music, books, movies, websites, and radio broadcasts surround us and compete for our time and attention. Our time, not the information that assails us, is the primary expendable good in this process. The consumer is thus the consumed.

The term "consumer" is correct insofar as it points to the fact that payments are regularly made for books, movies, and music as physical products. It also tends, to some degree, however, to conflate these products with information in misleading ways. (6) Copyright is essentially a law regulating information practices, not a law about manufacturing tangible products. Specialists manufacture most consumer products. Expressive representation and communication, on the other hand, is something fundamental to human nature. Cars consume gasoline and people consume food, but the information that is the subject of copyright can never be consumed. (7) After a book is read, the information remains. As all concede, intellectual property is, in economic terms, a public good. We will avoid talking about the consumption of information content, therefore, because this creates a serious potential for confusion and demeans the role that the public plays in creating the universe of expressive content. (8)

Instead of a model of content that proposes manufacturers and consumers, we want to look at the creation of content as a feature of human expressive activity. The amount of copyright-protected information available to the average individual today is staggering, and, surprisingly, copyright law has little to do with this development. For instance, the majority of Americans today have a computer that gives them regular access to the information phenomenon known as the World Wide Web. The Web is largely an amateur information-sharing project. A recent Pew Internet study on the creation of online content by individuals found that more than fifty-three million American adults have uploaded works to the Internet, including writings, art, video, and audio creations. (9) We therefore use "amateur-to-amateur" in the title of this Article to describe the social phenomenon of popular information creation and free distribution. (10) The participants are amateurs, by our definition, because they lack financial and proprietary motives. (11) The audiences are also amateurs because they are generally not financially motivated or interested in paying for the information that other amateurs create. They often build upon, copy, select, and retransmit the original information without performing the contractual negotiations that copyright law expects.

A leading example of such amateur participation in copyright processes is the social phenomenon of weblogs, or "blogs": regularly updated and freely accessible Internet-based writings. The Pew survey indicated that between two and seven percent of U.S. Internet users had created weblogs by 2004. (12) Weblogs are clearly protected by copyright (13) and often link to other weblogs or documents available on the Internet. Millions of people write and read weblogs every day, and during the past few years, weblogs have become a regular source of popular news, information, and commentary. (14) Weblogs are thus displacing, at least to some degree, the information and communication space previously occupied by traditional media such as television, radio, and newspapers. (15) Yet those who write weblogs are clearly not acting in accord with a theory of copyright as a required incentive for content production.

In this Article, we examine how the amateur-to-amateur trend in information practices calls into question copyright's claim to a central role in structuring our information environment. Part I explains the close relationship between copyright and technology. We explain how copyrighted content is essentially a subspecies of communicable information. Historically, the use of certain recording technologies, such as books, films, and sound recordings, has divided the general realms of information and communication from the realm of information protected by copyright. As we observe, however, this line is becoming blurred. Second, we explain how the centrality of fixation to copyright law has inevitably led, through technological advances, to an ever-increasing scope of copyright protections for new varieties of recorded...

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