Free access and the future of copyright.

• Author: Lastowka, F. Gregory
• Position: Digital information

A cornucopia of copyrighted text, images, and music is currently being created and shared by the Internet community. The creators and copyright holders of most of this shared content do not view the widespread distribution of their work as unlawful. This fact should spur us to reconsider the shape of our copyright law.

In the past, free distribution of copyrighted content was rare and was usually performed in the service of advertising or politics. Today, the ease of digital copying and distribution has enabled authors and artists to freely share digital copies of their creative and original works with broad audiences. Many creative people are availing themselves of this opportunity. Congress and the current copyright laws, however, remain largely oblivious to the concerns and contributions of these artists and authors. This paper argues that copyright laws need to be revised to take into account the role that free access content plays in the digital environment.

In sections I through V of this paper, I lay out three primary traditional business models of content distribution, as well as the challenges posed to these models by the digital dilemma. Section VI describes Congress' response to the digital dilemma as set forth in the DMCA. Sections VII and VIII explain how the DMCA fails to recognize and address important issues raised by free access content. Section IX offers a few brief suggestions on how to reform copyright law to address the interests of those who provide free access content.

1. THREE MODELS OF CONTENT DISTRIBUTION AND CONSUMPTION

   Copyright gives authors of certain forms of creative work the right to prevent their work from being copied. (1) It also grants authors additional rights, such as the right to publicly display the work and the right to make new works derived from the original work. (2) Copyright does not need to be sought by the producer of a work; it subsists by statute in all "original works of authorship fixed in any tangible medium of expression...." (3)

   Until recently, content was largely consumed according to three business models: the purchase of copies of content, the purchase of access to content, and the free (and sometimes involuntary) experience of content.

   The primary business model has always been the purchase and ownership of copies. Books, paintings, compact discs, and newspapers are sold according to this model. The copy purchaser's rights under this model are fairly substantial. For instance, once a book is purchased, it can be shelved, read a thousand times, resold, (4) shared with a friend, or even used to prop up a window.

   A second business model has been the purchase of limited-time access to content experiences (of a given work or a library of work). Theaters, video rentals, movies, cable television, and America Online (5) follow this model. The key feature of this model is that access to content is purchased but the content will cease to be accessible after a certain period (e.g., a single show, two days, or if a monthly bill is not paid). Once the time period ends, the content purchaser is left with only a (hopefully) pleasant memory. Obviously, a content purchaser's rights under this model are more limited.

   A third model of content distribution has been the distribution of free copies or free broadcast performances. Most often this content distribution is made in the service of advertising or propaganda, and it may therefore be an unwelcome experience to content consumers. Billboards, mass mailings, and advertisements are all based on this model. Television and radio are also based on this model, though they pair ostensibly valuable content with advertising in order to make a profit. Public television and public radio are another form of free content distribution. Public monuments such as Michelangelo's David or the Statue of Liberty also follow this approach. (6)

   Consumable content under the third model often vies with other content to some degree but is usually less desirable than content purchased under the other models because it incorporates attempts to persuade the consumer to believe a certain thing or take a certain action. (7) For instance, while there is evidence that some people find Super Bowl commercials more entertaining than the Super Bowl, it is unlikely that a large number of people would purchase a ticket to watch them. Public monuments, likewise, primarily beautify the environment but they also can be read as a form of advertisement for the state (e.g., Michelangelo's David advertises Florence).

   Obviously, the digital environment of the current World Wide Web does not fit neatly into any of these models. Unlike the first or second model, the vast majority of the content available on the Web requires no access fee, other than the expense of computer equipment and the use of a phone line or other network connection. Unlike the third model, there is very little expense incurred in distributing content via the Web, so advertising revenues are not absolutely necessary for the creation of free copies. Also unlike the traditional third model, the Web is vast and varied. Instead of a single public "channel" or "station", the Web offers free content that rivals the number of purchasable "copies" that exist under the traditional first model.

2. THE DIGITAL DILEMMA (8)

   The digital environment has upset the boundaries between these three business models based on copy, performance, and free distribution. This is no small matter, since billion-dollar industries with substantial political influence have relied on the differences between these models and would prefer to preserve the traditional models. The root of the traditional content industry's problem is digital copies: they are simply too easy to make.

   It is clear that there have been three forces conspiring over the last few decades to make digital copying so easy: digits, increased capacities for digital information storage, and the rise of large shared networks, particularly the World Wide Web.

   Digits form an essential part of the equation because they constitute a kind of universal language for storing information, be it a sound, an image, or a poem. (9) Digital environments translate all forms of content, at the most basic level, into a string of 1s and 0s. Different forms of hardware and software interpret these strings of digits to produce sounds, text, video, three-dimensional models or any other form of content. Digital copies are superior to copies of the past insofar as the quality of digital copies does not degrade. Since a digital copy is, at a fundamental level, just a very long number, a copy of a digital work is the same number and therefore is perfectly indistinguishable from the original. But the digital dilemma is not attributable to digits alone - digital music, for instance, has been with us ever since the first CDs were introduced over a decade ago.

   Cheaper and more powerful information storage is a second crucial element. Over the past thirty years, capacities for information storage have increased exponentially. With more room to store digits, digital information has become more densely textured. In the early 1980's, personal computers were largely text-based and text-intensive. The emphasis on text may be attributable to the fact that alphabets are, in a very real sense, digital. The English alphabet, for instance, is simply a set of twenty-six symbols that can be easily translated into a string of 1s and 0s that is barely longer than the original text. Music, by contrast, is much more difficult to reduce to 1s and 0s. An average music file in MP3 format would have barely fit on sixteen of the storage disks that were used a decade ago. Even if the software used today to play digital music on personal computers had been widely available in 1990, the expense of storage would have made an album downloaded from Napster about ten times as expensive as a CD, and much more cumbersome to download and play.

   But even today's digital technologies and storage capacities would be largely unimportant without networks adequate to facilitate the rapid sharing of digital information. The Internet is therefore the final part of the recipe. The Internet was created to facilitate the sharing of all varieties of digital information and it has fulfilled this goal remarkably well. The World Wide Web is essentially an application than runs on the Internet and provides a comfortable interface with Internet content. The Web increases the ease of transfer of text, images, and other media. Other non-Web technologies such as Napster and instant messaging systems also harness the power of the Internet's architecture to facilitate fast and convenient data-transfer.

3. THE EROSION OF THE COPY CONCEPT

   In the "real world", only a few people can read a book at the same time. (And a solo experience is arguably superior.) By way of contrast, a Web page can be read by millions simultaneously. In some ways this captures the essence of cyberspace. Yet while this observation may seem true from a subjective perspective, as a technical and legal matter, it is not true. A "copy" of a Web page, in a very real technical and legal sense, is still made every time a Web page is viewed. (10) For instance, the projection of words on a screen is arguably a fixation and a "copy" or "display." The temporary storage of information on conduit computers, which enable the projection of that information, has been determined by courts to constitute another "copy." (11)

   But these are not the kinds of "copies" that one buys at a bookstore or borrows from a library. Instead, the Web feels subjectively much closer to "access" as we use that word. Users of the Web who pull up a Web page (and do not print it or download it to their hard drive) (12) do not think they have made a copy of that page (unless they are technophiles or lawyers).

   Most users who listen to a song or watch a video that is freely accessible online (and do...