I want to juxtapose briefly a recent post by Ed Felten and one by Randy Picker, both of whom are commenting about why and what information technologies threaten. To be clear, neither is addressing the other. Still, they frame the basic debate, and it is impressive (and perhaps a little unsettling) that the terms of the debate have persisted more or less unchanged for roughly three decades.
Many people believe that the biggest impact of IT is that it allows easy copying and redistribution of all types of content. To some people, this is the only impact of IT.
But I argue in the talk that the copying issue is only one part of IT’s impact, and not necessarily the biggest part. The main impact of IT, I argue, is that computers are universal devices that can perform any operation on digital data (except those operations that are inherently undoable and therefore can’t be done by any device). . . .
This debate — whether IT is primarily a copying machine, or a creative tool — seems to run deeply throughout the online copyright debate. Those who see copying as the main impact of IT don’t much mind restricting digital technologies to further their copyright aims. But those who see creativity as the main impact of IT aim to protect the vitality of the IT ecosystem.
I come down on the creative side. I think the biggest long-run effect of IT will be in changing how we communicate and express ourselves. This is not to say that copying doesn’t matter — it clearly does — but only that we need to take the creative effects of IT at least as seriously as we take copying.
The powerful shift in copying technology over the last thirty years has destabilized how we produce copies and the economic arrangements associated with prior technologies. These technological changes have created a broad shift in the ability to make copies moving control away from producers towards consumers. Easier copying and transmission of copyrighted works has disrupted existing business models, especially for music, and works that were protected effectively by technology limitations now move around the globe in an instant.
This is much more than about business models. This is about the rule of law. The heart of copyright—the core right to control copies, to, in the words of the 1909 U.S. Copyright Act “print, reprint, publish, copy, and vend the copyrighted work”—is now in issue as ordinary consumers now must choose whether to copy work and distribute it widely. The rise of the p2p distribution services—Napster, KaZaa, Aimster, Grokster and their brethren—have shrunk (so far) the effective domain of copyright, and has done so in areas at the core of copyright. As a consequence, these technologies have altered the practical enforceability of the rights that law assigns to copyright owners. These core copy rights have to be judged by their actual effectiveness on the ground. We shouldn’t be interested in theoretical rights that don’t actually implement in the real world. The basic legal framing of copyright is at stake.