Technology and uncertainty: the shaping effect on copyright law.

• Author: Depoorter, Ben

Uncertainty ... is the only certainty there is, and knowing how to live with insecurity is the only security.

John Allen Paulos (1)

This Article examines the symbiotic relationship between copyright law and technology. I describe how an environment characterized by rapid technological change creates two conditions that determine the direction and evolution of copyright law: legal delay and legal uncertainty. I explain how uncertainty over the application of existing copyright law to newly emerging technology catalyzes the actions of copyright owners and users. I argue that uncertainty and delay (1) have an enabling effect on anticopyright sentiments, (2) lead to a greater reliance on self-help efforts by content providers and users, and (3) induce legislative involvement in copyright law. In the final Part of this Article, I consider how the framework of technological uncertainty and delay helps to explain a number of emerging issues in copyright law. I conclude by providing normative proposals for copyright reform. These proposals relate to the choice between standards and rules, as well as the role of courts, legislators, and administrative agencies in the development of copyright law.

INTRODUCTION I. DELAY AND UNCERTAINTY IN COPYRIGHT LAW A. Legal Delay in Copyright Law B. Legal Uncertainty II. THE BEHAVIORAL EFFECTS OF DELAY AND UNCERTAINTY A. The Emergence of Anticopyright Norms B. Copyright Self-Help C. Copyright and Congress III. UNCERTAINTY, DELAY, AND COPYRIGHT REFORM A. Evaluating Uncertainty and Delay B. Reducing Uncertainty and Delay C. Copyright Rules or Standards? D. Copyright Courts or Administrative Agencies? CONCLUSION INTRODUCTION

Judging from the headlines, it appears that copyright law is in an existential crisis. (2) Broadband networks and digital applications have widely expanded unlicensed access to copyrighted content. Consumer-to-consumer dissemination over file-sharing networks increasingly bypasses traditional segments of the copyright market. Despite the deployment of a wide array of scare tactics, (3) professional distributors have failed thus far to reverse file sharing and copyright circumvention. (4)

Two paradigms exist to analyze the existential crisis facing copyright law: the political-economy model and the technological paradigm. In the political-economy model, the death of copyright law is caused by legislative and judicial capture by copyright owners, which negates the original, true meaning of copyright law. The technological paradigm argues that digital technology has rendered copyright law hopelessly obsolete or, from the entertainment industry's viewpoint, dangerously ineffective. (5) Commentators argue that "digital copyright" requires a type of governance different from the historical straitjacket of copyright law. (6) Interested parties disagree on the appropriate direction of copyright law: namely, does new technology require a stronger legal hold on copyrighted content or does digital technology present an opportunity to release cultural goods from the shackles of copyright law?

With every court decision or appeal to Congress, the debate over the proper adjustment of copyright law becomes further polarized. (7) At one end, we find the entertainment industry, while on the other end we have consumers, scholars, and civil libertarians. The former argues that the entertainment industry will not survive unless intellectual property laws are strengthened to meet the threat of new technologies and the widespread theft that occurs over the Internet. (8) The latter maintain that new technology presents opportunities for unprecedented cultural exchange, suggesting that existing legal and institutional arrangements reduce economic welfare by strangling technological progress. (9) At regular intervals, both sides present their arguments before the Supreme Court. (10) Meanwhile, the copyright tug of war attains iconoclastic dimensions. (11)

As this description of current events illustrates, copyright law is greatly influenced by technological change. (12) Whenever technological advances create new means of making copies or communicating copyrighted works, difficult questions arise as to how boundaries should be drawn around new uses of content created by the new technology. (13) Despite copyright law's historic tendency to respond to new technological developments by adjusting the scope of copyright law (continuing from the printing press to digital applications), our theoretical understanding of the effects of technological changes on copyright law remains relatively undeveloped. Notwithstanding the general awareness of the intricate relationship between technology and copyright law, scholarship provides little insight into the causal dynamics between the two. As a result, with each new technological breakthrough, we are confronted with difficult questions about the relationship between the new technology and copyright law. For example, does the Internet present a challenge to copyright enforcement that is mostly related to the scale of infringements, or does it present a qualitative change that necessitates shifting the paradigm of copyright law? Is it simply that innovation leads the way and copyright follows? If so, can we understand the future of copyright law by looking ahead and anticipating changes in technology? Has technology created a paradigm shift in copyright law, and do current events simply exemplify the notion that laws are slow at adapting to evolving social norms?

This Article seeks to enhance our understanding of the intricate relationship between copyright law and technology in general and to examine the formative effects of technology on copyright rules in particular. I argue that technology, by creating an environment of rapid and unpredictable change, establishes two major conditions that have a profound effect on copyright law: legal delay and legal uncertainty.

Legal delay is caused by the dynamic and unpredictable nature of technological innovation. Delay is further amplified in a fast-changing technological environment because (1) uncertainty postpones the timing of lawmaking and (2) copyright law requires open-ended standards rather than specific rules. As a result, the legal adaptation of copyright law necessarily lags behind technological change. Legal uncertainty results because the general social and economic ramifications are typically unknown when a new technology is introduced. As these ramifications become clear, the process of legal classification faces many ambiguities and difficult issues of interpretation. In copyright law, breakthrough technologies make it more difficult to apply existing rules by analogy. Even when courts seek to apply the relatively bright-line rules of copyright doctrine, the exact entitlement of rights may be surprisingly uncertain when applied to a novel technology.

Uncertainty and delay impose significant societal costs. Any variance in the assessments of how existing rules apply to a new technology may divert behavior away from the social optimum. If a legal standard is uncertain, some individuals may overestimate the legal constraints and forego beneficial actions, while others may underestimate the very same constraints and carry out costly actions. Excessive compliance induces cultural impoverishment, especially when it causes artists to avoid incorporating copyrighted material even though the use might be considered noninfringing. In other instances, uncertainty may induce underdeterrence, leading to litigation costs and further polarization between copyright holders and users of technology.

More fundamentally, in Part II, I explain how uncertainty and delay catalyze the actions of copyright owners and users, thus providing insight into the formation of copyright law. Specifically, I argue that uncertainty and delay (1) have an enabling effect on anticopyright sentiments, (2) lead to a greater reliance on self-help efforts by content providers and users, and (3) induce legislative involvement in the area of copyright law. First, because technological innovation and new uses precede legal adaptation, technological innovation affects social norms. By the time that legal issues of copyright scope are solved with regard to a new technology, users of that technology are no longer neutral bystanders. Individuals internalize the use of a new technology and therefore experience loss when a previously "free" use is banned. As a result, copyright enforcement is frustrated by the stickiness of social norms (14) and the counterproductive effects that result from resisting already internalized norms. Second, the uncertainty and delay increase the reliance on self-help by both users and copyright owners alike. When copyright owners feel that the law adapts too slowly and fails to offer adequate protection, they invest in antipiracy-protection technologies. (15) This investment, in turn, motivates users to invest in circumvention technologies, creating an arms race between content owners and pirates in which the very technology that is used to create a lock can be used to pick it. This process leads to recurring lapses in enforcement and increases the polarization between the camps. Third, the hesitation of courts to quickly adapt copyright law to new technology often translates into judicial deference to Congress. Legislative rulemaking in copyright law may have particular significance for the shaping of copyright law over time, as it opens the door for greater influence by interest groups. The potential difficulty of reaching political compromise may further extend periods of legal uncertainty in copyright law. By prolonging legal uncertainty, judicial deference gives additional breathing room to the internalization of anticopyright norms by users and the reliance on self-help efforts by copyright owners.

Part III concludes by examining normative proposals for copyright reform. As I argue, the growing...