New York University Public Law and Legal Theory Working Papers

Title

Living Without Copyright in a Digital World

Document Type

Article

Comments

Albany Law Review, 2007

Abstract

This essay points out that creators and copyright owners recognize, whether or not they admit it, that traditional copyright law is simply not up to the job we have tried to assign it in cyberspace. In fact, copyright owners in reality do not rely on copyright to protect themselves there, except in purely incidental ways. Instead, they use one of four strategies in distributing their content – the strategies of the Naysayer, the Locksmith, the Subverter and the Explorer. The Naysayers try to avoid problems by staying away from on line distribution altogether; the Locksmiths shroud their works in digital rights management systems and restrictive contracts; the Subverters find ways to bend the rules of copyright to limit their effect, often in ways that the statute's drafters could never have anticipated; and the Explorers push copyright aside altogether in favor of developing their own creative forms of distribution. The Naysayer strategy has already amply been shown to be a failure. The characteristic in greatest supply today in the delivery of information goods in cyberspace is willingness to experiment, with individuals and entities mixing and matching aspects of the other three strategies to suit their own needs, hoping in the process to find new ways to market their work, earn a living, and thrive in a digital environment. Whatever the end result, the paper posits that emerging solutions will share three fundamental characteristics. First, they will owe relatively little to formal copyright, even if that law continues to play an important role in the analog world. Second, they will give up on attempts to thoroughly lock down works in the effort to prevent unauthorized copying and uses. Third, if digital rights management remains part of the ultimate strategy, its design will take account of what the users – and not just the content owners – view as fair and equitable. What will actually turn out to be the “best” ways to disseminate content in cyberspace is hard to guess: whether a single version of the Creative Commons license will emerge, or a variety of them will continue to be used; whether some modest iterations of DRMs will turn out to be useful and palatable; whether financing through auctions will prove feasible, or whether instead creators will find it more practical merely to post content and let whoever wants it take it for free. Maybe systems will emerge that no one has thought of yet. The objective of policy makers during this period of ferment should be simple: do no harm. Erect no unnecessary roadblocks that will derail efforts to find out what is efficient, preserves incentives and is acceptable to the public. What should not happen is for everyone to remain stuck on arguing how to make the existing legal regime “fit” in cyberspace, simply because it is the way things have been done for centuries. The truth is that out there in cyberspace, copyright has pretty much been left behind.

Date of Authorship for this Version

November 2007

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