Owning digital copies: copyright law and the incidents of copy ownership.

• Author: Liu, Joseph P.

ABSTRACT

As copyrighted works are increasingly distributed in digital form over the Internet, our conventional print-based understandings of the rights associated with copy ownership are coming into increasing conflict with the copyright owner's right to restrict copying. Specifically, certain common activities, such as reading and transferring physical copies of copyrighted works (such as books), are increasingly being viewed as potential acts of copyright infringement when applied to digital copies. This Article explores this conflict by taking a close look at the concept of copy ownership. It argues that conventional notions of physical property ownership play an important, unrecognized role in copyright law. It further argues that, in order to preserve this role, copyright law should recognize an unlimited right to access digital copies in one's possession and a more limited right to transfer such copies to others.

INTRODUCTION

Copyright law places a number of limits on what I can do with my dog-eared copy of William Faulkner's As I Lay Dying.(1) I cannot run it through the photocopier to make another copy. I cannot read from it aloud in a public place. Nor can I translate the book into a foreign language (assuming I could speak one). These are things that I simply cannot do with my book, at least not without permission from the copyright owner or some statutory privilege. At the same time, copyright law permits me to do many, if not most, other things with my copy of that book. I can read it as many times as I want. I can lend it to a friend. I can destroy it. I can sell it to a stranger. I can even rent it out for a fee. All these things I can do without asking the copyright owner for permission or relying on some notion of fair use.(2) What explains the differences in these activities? Why can I do some things with my book, but not others?

One standard explanation is that copyright law picks and chooses among different permissible uses in order to strike a careful balance between the rights of the producers of works and the rights of consumers.(3) According to this view, copyright law has never granted producers the right to control all uses of their works. Instead, it confers only a limited bundle of rights: the rights to reproduce, publicly perform, publicly display, publicly distribute, and make derivative works.(4) These rights are designed to give producers an incentive to keep producing. But, according to this explanation, giving producers any additional rights (such as the right to control reading or resale) would unduly restrict the access to, and the wide dissemination of, copyrighted works that the copyright laws are designed to foster. The particular bundle of copyright rights is thus determined through this careful balancing of incentives and access.

Yet, upon closer examination, this account does not completely explain why we have struck the balance that we have. For example, the ability to sell a copy of a book to another would appear to reduce the incentives to create works. After all, by selling the book to another individual, I potentially deprive the author of royalties from a sale of the book. The sale is nearly a perfect substitute. Why does copyright law not restrict this activity? Conversely, prohibiting the public performance of a piece of music would appear to restrict wide access to, and broad dissemination of, that work. Why does copyright law bar this kind of dissemination? It may be that the current bundle of rights, as a descriptive matter, leads to a certain balance of rights and access, but this balance seems contingent. If a balance needs to be struck, there would appear to be any number of ways to strike it. What accounts for the particular balance struck by our existing copy copyright laws, the particular division of rights between copyright owner and copy owner?

Another possible explanation, and one that seems more convincing to me, is that the bundle of rights, and the corresponding limits on that bundle, are determined in part by certain conventions and understandings that we commonly hold about the ownership of physical property.(5) For example, I own my copy of As I Lay Dying. Once I buy my copy, I should be entitled to dispose of it as I wish. This is, after all, what it ordinarily means to own a piece of physical property. While this entitlement may not extend to running it through the copy machine, it surely should include my right to read the copy, to sell the copy, or to lend it to a friend. Under the common law, restraints on the free alienation of physical property are generally disfavored. In copyright law, this disfavoring finds doctrinal expression in the "first sale" doctrine, which generally bars copyright owners from exerting certain types of control over copies of their works once they have parted with title over a particular copy.(6) Thus, under this explanation, the bundle of copyright rights is limited by our conventional understandings about physical personal property. Such conventional understandings help draw the line between the rights of copy owners and copyright owners. Or, perhaps more accurately, these understandings provide the physical baseline upon which copyright law is imposed.

But if this is the explanation, or at least an explanation, for the current bundle of copyright rights, how should we think about the bundle when our copies of copyrighted works begin to lose their physical characteristics?(7) It should be clear by now to just about everyone that we are currently in the midst of a dramatic transformation in the way in which copyrighted works are distributed.(8) Whereas such works were once distributed primarily in the form of physical, tangible copies, today such works are increasingly taking on intangible form. Specifically, with the advent of the Internet, more and more copies of copyrighted works are being distributed in digital form--digitally encoded in an electromagnetic pattern of ones and zeros. Today, it is not at all uncommon to find not only text., but also pictures, sound clips, software, and, increasingly, video clips distributed over the Internet in digital form. And as the capacity of networks increases and compression technologies improve, this trend will only accelerate.

As more and more content becomes distributed in digital form, however, our instincts about physical personal property begin to have less and less purchase.(9) The conventional understandings we possess about physical copies--the ones that seem to explain and help define much of the existing balance of copyright law--do not seem so applicable to copies that take intangible, electronic form. The physical baseline upon which copyright law acted no longer exists. The result is that the appropriate balance of rights between copy owner and copyright owner becomes less clear. For example, assume that I download a copy of As I Lay Dying onto the hard drive of my computer so I can read it later. No physical property has changed hands. What rights have I acquired in the digital copy? What rights have I acquired over the magnetic pattern of ones and zeros that currently rests on a portion of my hard drive? Can I access it as many times as I want? Can I send those ones and zeros to a friend? Can I sell my computer to another person, along with the embedded copy of As I Lay Dying? What, exactly, do I now "own"?

Surprisingly, under existing law, the answer is not at all clear. Some have argued that I physically own exactly what I have always owned--the actual piece of magnetic disk that holds the ones and zeros that represent the novel.(10) I can do with that piece of disk whatever I could have done with it in the past. If I want to clip out that portion of my disk and hand it to another, I am fully entitled to do so. If I want to remove the hard drive and send it to a friend, I can do so. But if I want to send the work to my friend over the Internet, I will be infringing upon the copyright, because my sending the work will necessarily entail the creation of a copy of that digital pattern of ones and zeros.(11) Indeed, several courts have held that even my accessing the document by computer may constitute an infringement, because this leads to the creation of a copy of the work in my computer's random access memory (RAM).(12) Yet something about this seems very odd. Why should the scope of my rights, as a practical matter, depend so dramatically on the particular medium in which I have captured the copy? Why should what I can do with a book depend so dramatically upon whether I have downloaded the book onto a hard disk or purchased a copy in a bookstore?

Others argue that copyright law should be interpreted or translated, not literally, but functionally, so as to preserve the substantive rights that I formerly enjoyed with physical copies.(13) Thus, for example, I should be entitled to send my digital copy of As I Lay Dying to a friend over the Internet as long as I am careful to delete the original copy from my hard disk.(14) I should also be entitled to read the work as many times as I want, just as I can read a book as many times as I want, even if it means making multiple copies of the work in the RAM of my computer. Yet precisely why should we be so concerned about preserving in the digital world the exact bundle of functional rights I enjoyed in the physical world?(15) If those rights were based on our understandings about physical property, what justifies transposing those understandings into the digital world? Indeed, some commentators suggest that the novelty of the digital medium warrants a substantial reconsideration of copyright law, breaking it free from its historically constrained, print-based model.(16) Instead of focusing on a technologically outdated notion of"copying," perhaps copyright law should focus instead on "access" or some other activity more appropriate to the digital environment.(17)

In this Article, I argue that...