Copyright Law in Transition

Boston MassacreIrene’s post and Kali’s post got me thinking: What is it that interests me about copyright law? The answer is somewhat surprising, given that I specialize in copyright law: nothing, per se. I’m not especially attracted to the doctrine of copyright law more than a number of other subjects, such as torts or contracts or even securities regulation. Indeed, as cocktail party conversation goes, I always cringe a little when I say I specialize in copyright, because it often leads to a discussion of some particular controversy in which I am forced to admit at the end that I have no idea what the answer is, as the statute is vague and there are cases on both sides (or maybe no cases at all). At least there are answers to what constitutes insider trading.

What interests me about copyright is not copyright law in itself, but copyright law as a subject. Over the past few years, I’ve come to realize that my interest in copyright law and Internet law predates law school. It’s part of my general interest in ideological transitions, and in particular turbulent ideological transitions. I’m interested in copyright law for the same reason I’m interested in vigilantes and alterations in foreign policy and systems accidents.

All of these phenomena result from sudden shifts in the contextual terrain that expose the limits of the prevailing mental maps—the ideological frameworks—of one or more groups in society. Conflicts arise that can’t be resolved according to the old rules. Groups are brought into conflict that previously were kept separate.

This is what is going on in copyright law right now, although hopefully with less catastrophic consequences than a plane crash or lynch mob. The technology of publishing has changed drastically in the last 30 years, collapsing the boundary between two separate spheres: publishers and consumers. Now one set of rules and norms must apply to everyone. No one, in my opinion, has really adjusted to this new terrain. And, like most cases of boundary collapse, the friction between the two formerly separate spheres is generating a considerable amount of heat. Representatives of both sides believe that their most cherished liberties are in peril.

That’s what interests me about copyright law—it’s a conflict brought on by a sudden transition, one symptom of which is doomsday rhetoric seemingly out of all proportion to the stakes involved. And that is one salient feature of the copyright debates occurring  now. Some of my current work, which I’ll discuss in future posts, attempts to figure out why.

This Post Has 5 Comments

  1. Irene Calboli

    I wonder whether the transition from the handwriting to the printing press could have anything similar to the transition to the digital revolution in copyright law. Maybe not as much in practical terms of access and number of people, but probably from an idealogical standpoint, we could even say that that was the real beginning of the copyright revolution, the first time that content could be replicated on a large scale at a speed before not imaginable.

    I am very glad that my post started this great conversation!

  2. Bill Rowland

    Clearly, the rapid change in publishing spurred by the vast improvements in technology have created great challenges to the interpretation and practice of copyright law. Formerly solid boundaries are now vague and society that constantly seeks black and white is now faced with grey.

    Touching on Irene’s comments, I would be surprised if there wasn’t similar “friction” in the transition from handwriting to the printing press.

  3. Bruce E. Boyden

    The changes wrought by the invention of the printing press were huge — among other things, it spurred the Reformation. That’s the sort of disruptive effect I have in mind, although the effects of the printing press played out over centuries, which may have been “sudden” in 16th-century terms but does not seem very sudden now. Among the more subtle effects the invention of the printing press may have had was the creation of a literary culture based on print media such as not only books but newspapers and pamphlets — the blogs and YouTube of their time. That in turn may have helped form national identities, including a primordial American identity.

    Among the other effects was the emergence of writing as an occupation and publishing as a business, and Irene is right that that gave rise to copyright in the first place, in 1710. It’s no accident, I think, that copyright emerged contemporaneously with the rise of the modern novel, with authors such as Daniel Defoe and Jonathan Swift producing long-form works of fiction.

    I’ve thought about this some but I’m not sure what lessons can be directly derived from this history. Some scholars have attempted to spin analogies of authoritarian control (the Catholic Church’s in the 1500s vs. media companies now), but I believe that’s overwrought. I think writing and the production and distribution of other art forms will continue to be an occupation and a business, so the economic need for copyright isn’t about to fade away. But the technological assumptions on which copyright was based are clearly being undermined. As Clay Shirky recently suggested, we may have to resign ourselves to the fact that we simply can’t predict what’s coming next.

  4. Laura Steele

    I’ve really enjoyed this series of IP posts! Indeed, changing technology creates so many competing interests and legal challenges. I view the change from three perspectives: first as a former journalist, second as a child of the technology era (well, barely, I didn’t hear “you’ve got mail” from my computer until I was in 8th grade), and third, as a law student.
    As a journalist, I see what the era of free content is doing to an industry, which still hasn’t entirely jumped on the technology bandwagon and painfully screams out “look i’m trying” by making veteran journalists “blog,” “twitter” and “facebook,” all the while detracting from the true investigative and watch dog role of a free press. But, as a child of this technology era, I haven’t bought a sunday newspaper in years; I read copyrighted content for free regularly ; and I’ve even (gasp) watched some copyrighted clips on youtube. However, as a law student I am well aware of the significance of copyright holders’ rights, and the ramifications for violators.
    In the macro view, what results is a struggling industry (publishers), whose source of profit has been jettisoned by a culture that has developed an inherent sense of entitlement to use original creative content in whatever way it wants, for free. Perhaps in the end, despite threats of astronomical lawsuits from the RIAA, content trolls on youtube, etc, we’ve turned into a generation that merely pays lip service to copyrights. I agree that the economic need for copyright is eternal, but the lack of respect for its significance seems to be chipping away at the economic value it creates and protects. I wonder, will the next michael jackson be able to secure his multi-million dollar debts against an interest in the next “beatles” catalog?

  5. David Papke

    I like Bruce Boyden’s distinction between intellectual property doctrine on the one hand and the subject of intellectual property on the other. In general, I agree that specific rules and statutory provisions in and of themselves are not especially interesting, but that the relationships of those rules and provisions to their culture and society are. I feel this way about Family Law, one of the courses I teach. It isn’t the laws that fascinate me, but rather their relationships to the changing understanding of family life.

    On the more abstract point about law’s interrelationship with ideology, I think this is something that merits much greater attention in the legal academy than it presently receives. I’m reminded in particular of Jessica Slavin’s observation that in the United States law is a primary way ideology becomes specific and concrete. Lawmakers bring ideology to earth.

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