SOPA and today’s protest against it reminds me of something I wrote back in 1995 concerning increasingly draconian efforts to impose old copyright laws on new technology. It was published in the Indiana Law Journal in 1996:
In a sense, the Task Force’s attempt to tighten the reins is quite understandable. As noted above, copyright law attempts to protect expression by proxy through its embodiment in the physical world. The embodiment of expression in the physical world is becoming more and more tenuous, however, as digital technology grows. The capability to convey expression from one person to another is fast approaching direct exchange of thought without embodiment of an intermediate physical form. Or, at the very least, if the previous description seems too transcendental, the intermediate form of expression is becoming “liquid” where previous and current copyright law deals with a solid.
One can view the Task Force’s recommendation as akin to attempting to hold on to a melting object; one clutches it more tightly in a vain attempt to prevent it from falling to the ground. As John Perry Barlow puts it:
Since we don’t have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future on a sinking ship.
This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as without.
Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial.
The legal efforts attempting to reconcile digital technology with copyright law reflect a larger problem. It has always been the case that new technology creates unforeseen difficulties. In fact, Lewis Mumford suggested that the invention of the clock by and for the use of the monasteries led to their undoing. The new technology made it possible to abstract time in humans’ minds and, once abstracted, time could be controlled and regimented. Control and regimentation led to the rise of capitalism which in turn led to the decline of religion and the monasteries. While this description is something of an oversimplification, the main point is straightforward. New technology is created in pursuit of purposes which are consistent with the status quo, but aside from the original goals, the new technology also creates possibilities which challenge the status quo. Once these possibilities are available, humans naturally explore them and disrupt the established order with these new possibilities. The law can recognize this and embrace the new possibilities with as little disruption as possible, or the law can futilely attempt to barricade that which is new, different, and disruptive.
The video and musical recording industries have benefited from the development of digital technology. The technology allowed a cleaner and more refined sound and picture. But those industries will learn, if they have not already, that in addition to providing better pictures and sounds, digital technology allows nearly unlimited dissemination of works without any deterioration in quality. Interested parties, such as the established recording and movie industries and the authors of the Green Paper, would like to keep the intended benefits of digital technology–the improved picture and sound quality–while squelching the unintended disseminatory possibilities of the new technology.
This course of action is almost certain to fail. The law needs to adapt and embrace new technology, not become more rigid and try to withstand it. As the Court recognized in Sony:
From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment–the printing press–that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.
Furthermore, the Supreme Court noted,
“The fortunes of the law of copyright have always been closely connected with freedom of expression, on the one hand, and with technological improvements in means of dissemination, on the other. Successive ages have drawn different balances among the interest of the writer in the control and exploitation of his intellectual property, the related interest of the publisher, and the competing interest of society in the untrammeled dissemination of ideas.”
Digital technology is a significant new means to disseminate information and it is time for copyright law to change accordingly. It is time for the law to recognize properly the media which it attempts to govern. If the law remains unchanged– attempting to govern as solid that which is essentially liquid–it will have to create an unnecessary and inexcusable scarcity of access to copyrighted works in order to work. This is so because current copyright law is premised upon a need (a need which is becoming less pronounced) for works to manifest themselves tangibly before communication between people is possible. Therefore, an artificial scarcity would arise in large part from precarious balancing acts which try to pay homage to the old ways, but which also attempt to recognize the new possibilities.
A concrete example of such a balancing act is a policy which allows the public to access a public digital library only from existing physical libraries. Such access would allow at least a slight improvement in the collections of existing libraries; it would make it at least theoretically possible for the public to have access to digital works by means of a computer terminal in the physical library; it would prevent the obsolescence of existing libraries by making them a legal requisite to digital library access; and inconvenient access would encourage the purchase of one’s own physical copy of the work. Unfortunately, these access requirements would also create inexcusable waste and unnecessary scarcity. The waste would arise from the inefficient movement of people to gain access. Direct distribution of digital works to the home would be just as cost effective, if not more so, than a more centralized method of distribution, such as a library or software store. Creating an informational bottleneck at the physical library would in turn create an unnecessary deprivation of knowledge for those without the time, inclination, or transportation necessary to reach a physical library capable of accessing the requisite information.
On a side note, I can’t believe it’s been sixteen years.
A very thougtful analysis and historical background, Doug. Thanks!