Wednesday, 21 November 2007

Tehranian: copyright needs reform

John Tehranian, professor of law at university of Utah, wrote a paper (13 pages) called "Infringement Nation: Copyright Reform and the Law/Norm gap"

1 Introduction
2 Copyright relevance
3 Copyright consciousness
4 Copyright's law/norm gap
5 Conclusion

As a veteran listener at many lectures by copyright specialists
over the past decade, I know it is almost obligatory for a
speaker to begin by invoking the communications revolution of
our time, [and] then to pronounce upon the inadequacies of the
present copyright act.

Benjamin Kaplan’s wry admonition, made over four decades ago in his
seminal tome An Unhurried View of Copyright, rings just as true today. As the
rapid pace of technological change continues to force a reconsideration of the
vitality of our intellectual property regime, it is tempting indeed to cite the
“communications revolution” of our time—the Internet—as disrupting to the
delicate balance struck by pre-digital copyright laws between the rights of owners
and users of creative works. After all, it was no less than the Supreme Court that
succumbed to this inexorable urge in its first encounter with cyberspace by
famously proclaiming the Internet “a unique and wholly new medium of
worldwide human communication.”2 But the rush to tout the revolutionary
potential of the Internet has subsided; the Panglossian cybernauts have faded like
other fin-de-si├Ęcle perpetrators of the “this time, it’s different”3 myth—the dotcom
boomers who embraced wild predictions of Dow 100,0004 and the speculators
who rode the recent real estate wave. A tide of skepticism5 has followed the
euphoria epitomized by John Perry Barlow’s influential Declaration of the
Independence of Cyberspace.6 The Internet, it turns out, can be regulated, even in
the face of the fractured and anarchic international legal regime. Ironically, no less
than the Supreme Court has so held, finding that the Internet is not sufficiently
different to warrant wholesale reform of numerous long-standing legal doctrines.7
All the while, as Congress and the courts chart the course of regulation, a turf
battle over intellectual property rights in cyberspace continues to rage. Copyright
maximalists, such as the Motion Picture Association of America (MPAA) and
Recording Industry Association of America (RIAA), have bemoaned the Internet’s
potential to transform any teenager with a computer into a grand larcenist. They
argue that the ease of digital reproduction has enabled piracy on a scale never
before witnessed in human history, and they have lobbied vigorously for statutory
weapons with which to fight this scourge.8 Meanwhile, copyright skeptics such as
Larry Lessig and Pamela Samuelson have asserted that the digital revolution has
radically enhanced the rights of owners rather than users.9 They argue that
development of digital rights management technology has enabled copyright
owners to exercise unparalleled dominion over their property, thereby constraining
fair use rights.10 Digital fences have begun to dot the online landscape, bringing a
new enclosure movement to our cyber commons every bit as significant as the
eighteenth-century edition.11
So what are we to make of this paradoxical gestalt where the Supreme Court
has simultaneously embraced and rebuffed the Internet’s status as a unique
medium and where educated observers recognize that digital technology has
simultaneously spurred unparalleled rates of piracy and granted heretofore
unknown levels of control to copyright owners? And, with Benjamin Kaplan’s
caveat in mind, what are we to make of a symposium entitled Fixing Copyright, a
designation that presupposes a broken system in need of reform?
Clearly, we are only beginning to grasp the massive changes afoot with the
advent of digital technology. Yet amidst the flux, one constant emerges: the 1976
Copyright Act lies always at the heart of these debates, inextricably mediating our
relationship with cyberspace and new media. Three decades have passed since the
current Copyright Act went into effect. Without dispute, tremendous economic,
technological, and social changes have occurred in that time. And although these
changes do necessarily warrant concomitant reform, this symposium follows on
the premise that we have reached an appropriate point to evaluate the efficacy of
the extant Act and think holistically about the issue of reform.
At this juncture, three key trends bear close observation. First, copyright law
is increasingly relevant to the daily life of the average American. Second, this
growing pertinence has precipitated a heightened public consciousness over
copyright issues. Finally, these two facts have magnified the vast disparity between
copyright law and copyright norms and, as a result, have highlighted the need for

In recent years, legislators, judges, and practicing attorneys have critiqued law
reviews for their excessively theoretical bent, arguing that their contents have
become increasingly devoid of any real-world value. At the risk of alienating my
academic colleagues and shocking the members of the copyright bar, I would like
to think that this symposium is different. By bringing together a group of leading
copyright scholars, including Tom Bell, Dan Burk, Wendy Gordon, Justin Hughes,
Peter Jaszi, Bobbi Kwall, David Nimmer, Pam Samuelson, and Rebecca Tushnet,
to contemplate the issue of legal reform in practical terms, this symposium strives
to foster a dialogue that could impact future revisions at a concrete level. It is a
first step in what will hopefully become a broader debate over copyright reform.

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