It occurs to me that I’ve been at this Internet thing for quite some time. Thirteen years ago, I started writing a law review article about the Internet and copyright law. It was published a dozen years ago with the title Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work.
My central premise was that the Constitution’s copyright clause allows intellectual property rights only as a means to the end of “promoting science and the useful arts” — in other words as a means to encourage the production and dissemination of intellectual property. For centuries, lawmakers were able to use the physical manifestation of the intellectual property as a proxy for the intellectual property itself. The prohibitions were directed more at the book and less at the story inside. John Perry Barlow characterized the issue as being in the bottling business instead of in the wine business.
Digitization of everything combined with the rapid dissemination of the Internet undercut this approach. Old laws were fine for governing the “solid” manifestations of books and records but don’t work very well for governing more “liquid” manifestations like digitized files online.
The article is starting to look pretty dated, but I think my central premise is on target. Lawmakers haven’t done much in the way of changing copyrights in any useful way. Online, I think copyrights are largely ignored. For example, Google seems to have a copy of just about everything. Bloggers think nothing of copying huge chunks of this and that; sometimes for commentary, other times just to say, “hey, look at this!” But, people are producing intellectual property at a faster clip than ever. So, the purposes of the intellectual property clause of the Constitution are probably being served; in spite of rather than because of the current state of copyright law.
I’m glad to see your conclusion, especially given how large publishing outlets have perverted the intent of copyright law. Copyright law was originally meant to have a large corpus of material in the public domain. Creators were to be given an exclusive license of limited duration to encourage them to publish. But then the duration was supposed to expire, allowing the creations to move into the public domain. Corporations like Disney, on the other hand, prefer to feed off Walt’s corpse instead of take a risk on new material.