This is one of a series of posts; the last post was here.
The rise of copying and yet even more recently of easy distribution across the Internet has changed the consequences of the copy profoundly. Technology has dramatically expanded what can be copied, and personal computers and networking have made distribution of digital copies instantaneous. To possess a copy is to have the power of distribution in your hands. To sell a single copy of a work is to sell the practical ability to distribute content for free. Sold once, free everywhere. That is most true for music—hence music has been the frontline in the content wars—as the songs that make up popular music today are divided up nicely into 3-5 minute chunks and in digital form are measured in megabytes and not gigabytes.
Before the rise of widespread copying, copyright law—the law that most directly addresses rights as to copies—was the domain of professionals and meant little to typical consumers of content. Professionals fought with other professionals over the boundaries of copyright. Authors fought with movie producers who made unauthorized versions of books. Movie producers fought with competitors who physically copied early movie reels and sold the copies to exhibitors. Record companies sued radio stations who spun records over the airwaves. Consumers lacked the means to copy, and while consumers undoubtedly had a stake in the fights among professionals, consumers themselves didn’t have to confront whether to copy or distribute content and thus weren’t likely to be the target of a lawsuit.
Copyright law has emerged as one of the flashpoints in U.S. law today. This is driven by technological change and the central role of culture in our society, especially mass media culture. The powerful shift in copying technology over the last thirty years has destabilized how we produce copies and the economic arrangements associated with prior technologies. These technological changes have created a broad shift in the ability to make copies moving control away from producers towards consumers. Easier copying and transmission of copyrighted works has disrupted existing business models, especially for music, and works that were protected effectively by technology limitations now move around the globe in an instant.
This is much more than about business models. This is about the rule of law. The heart of copyright—the core right to control copies, to, in the words of the 1909 U.S. Copyright Act “print, reprint, publish, copy, and vend the copyrighted work”—is now in issue as ordinary consumers now must choose whether to copy work and distribute it widely. The rise of the p2p distribution services—Napster, KaZaa, Aimster, Grokster and their brethren—have shrunk (so far) the effective domain of copyright, and has done so in areas at the core of copyright. As a consequence, these technologies have altered the practical enforceability of the rights that law assigns to copyright owners. These core copy rights have to be judged by their actual effectiveness on the ground. We shouldn’t be interested in theoretical rights that don’t actually implement in the real world. The basic legal framing of copyright is at stake.
But copyright law has been for professionals for another reason, namely, that only professionals could generate widely-available content. With the rise of spontaneous scale and the vanishing line separating amateurs and professionals, copyright law matters more—more people will encounter copyright directly than ever before—but the cold truth is that copyright law itself is not user friendly. I mean that not in the sense that copyright law is anti-user—though many would contend that—but more in the sense that copyright law is written by lawyers for lawyers. This is true of most law, but we now have a problem. The tools of copying and distribution and of taking copyrighted works and mashing them together to form new works are available to anyone with a computer and an Internet connection, but the tools of knowing copy rights are available to almost no one (even professionals in truth). Copyright law is both intricate and vague—fair use rules notoriously so—and this is an especially bad combination when consumers are in the front lines.