I saw a paper recently that made an argument of a familiar sort:Â
Business and technology are changing the nature of X artifact that has been the object of regulation via IP. How we think about and apply relevant IP needs to change as well. In this case, the argument was about books becoming e-books, and about how copyright needs to adapt. Authors and publishers might need weaker (or in some cases, stronger) copyright in order to sustain markets for their works and receive returns that justify investments in producing and distributing new works. Types and behaviors of intermediaries differ in e-book markets, goes the claim, and so revised schemes of copyright liabilities and protections should evolve. Users (formerly: readers) have new and different sets of expectations concerning e-books, some of which can and will be accommodated in the evolution of markets, but some of which may not be.
I don’t want to defend or criticize any of the particulars of that argument. I want to point out just how standard that argument has become. Books have become fundamentally different; therefore copyright must adapt. Music has become fundamentally different, therefore copyright must adapt. Film has become fundamentally different, therefore copyright must adapt. Software has changed fundamentally several times: It has moved from integration with the machine (mainframe version) — to standalone packaged product — to downloadable standalone product — to integration with the machine (cloud version, or app version – take your pick).  Software and film and music and story are blending: videogames are fundamentally different. Copyright must adapt.
This is, I think, the story of much of copyright over the last 100 years. My best guess is that a similar story could be told regarding patent, and regarding trademark.
The question that I’m pondering, beyond the “normalcy” of these arguments, is why copyright (patent, etc.) is assumed to be the fixed cultural construct and the object of regulation — book, film, music, software, etc. — is assumed to be the profoundly changing cultural artifact.
Why not, in other words, make an argument with the following structure:  Copyright today has become fundamentally different (compared to when?, one might legitimately ask, but that question is legitimately asked in the version of argument that I lay out above. It’s inevitable.).  The breadth of the author’s and publisher’s rights, the claimed interests of users, readers, viewers, listeners, and related creators, and more importantly, the cultural and economic meaning of those rights, has simultaneously expanded beyond recognition and collapsed onto itself (via the rise of digital regulation, contract, business models, and other things). Only the Supreme Court’s insistence that copyright has not yet expanded beyond its “traditional” boundaries allows us to maintain the fiction that copyright today is in any sense “the same” as it was (whenever), just as calling an e-book a “book” allows litigants — and authors and publishers — to align e-book deals with book deals, when they are in many respects apples and bananas.  Because copyright has changed so dramatically, we should re-think and re-apply what it means to call something a “book.” What we’re talking about is knowledge and information that humans share by recording, storing, and reading text. The medium isn’t unimportant, but text is the thing.  But copyright has changed so much that calling “text in medium” a “book” is no longer accurate or useful. Let us invent new things, or at least call these new things something other than “books.”  While we’re at it, we can re-imagine what copyright (or relevant law — it need not be copyright) looks like as well.
At the end of the day, a lot of the relationship remains the same: books (or films, or music, or whatever) evolve; law co-evolves. But I’m thinking of changing what serves as the metaphorical boat (moving about its anchor) and what serves as the metaphorical anchor (moving along the bottom of the sandy ocean, pulled by the boat).
What does the world look like, in other words, if we abandon the premise that copyright, patent, and trademark law are essentially eternal things, adapting as needed to changing social, cultural, and material conditions? I’m not suggesting that we erase the board and start over. I’m asking: what’s next?
I’d actually take a third route, which would be to say that copyright’s “substrate” is rapidly changing, and therefore copyright’s foundation is being shaken. (I have earthquakes on the brain today.) Or to use your metaphor, the boat and the anchor are largely staying put, it’s the ocean floor that’s moving. It’s not copyright law per se that’s different, I think, it’s the background assumptions that went into copyright law, namely the existence of various physical gates at which it would be relatively easy to control the exchange of access for money. Given that those are disappearing (which I think is what people are getting at when they talk about the ways in which various media are different), we must ultimately change copyright or it’s going to be increasingly off-kilter and hard to apply.
I don’t really have a good sense of how it should be changed though, and I worry a bit that trying to determine that is like trying to determine how to design the interstate highway system in 1920.
I’m tempted to reply in Zen: there is no ocean floor. But that’s too flip.
There’s a “turtles all the way down” problem here, I think. (Recall the story, perhaps apocryphal, of William James – or perhaps Bertrand Russell – and the claim (contra their own) that the world was supported on the back of a giant turtle.) There is a conventional wisdom regarding what copyright “is” (what patent “is,” what trademark “is”, and so on) that is captured by “the social, cultural, and material conditions” of some relevant time and related “assumptions” about the way the world worked then. So, the argument goes, the assumptions have changed; therefore the law should change. How? We’re hardly sure (your interstate highway point). But change it often has, and change it will again.
My ongoing questions — not an objection, really, just a next-level set of inquiries about what we (“we”) should be thinking about — have to do with whether that (the assumptions-as-foundations model) is really right, or the extent to which it is right. Do we rely on the materialism implicit in the “physical gates” model? Or the ideology implicit in a natural rights view of the world? One historical work that I’m reading through at the moment places the origins of American copyright on the other side of an ideological divide in American history between government and law as guided by elite, Enlightenment principles (say, up to the late 18th century) and government and law as embedded in middle “class” merchant commercialism (beginning in the early 19th century). Which assumptions, and whose assumptions, matter?
Or maybe the “assumptions” are really premises about human behavior and belief (internally focused, in other words), rather than premises about markets and technology and reward (externally focused). Maybe *those* haven’t changed; maybe human *nature* has been constant since 1710. Is that where the stack of turtles stops?
I can turn the question around, because the question has to do with more than IP, and it influences some bigger things that I’m wrestling with right now. When we look at the shape of the world, what determines what it looks like? Using “looks like” as a metaphor. Why is copyright “copyright,” and not something else, and not simply in a pure historical sense?
If you’re arguing that our notions of what copyright should be (which, if you feel strongly enough about it, is what copyright “is”) are historically determined, then I’m totally with you. By “assumptions” above I meant “material conditions prevailing at the time,” not any sort of normative justification for a particular structure for copyright law. But my opinion is that the structure that exists was built based on material conditions that no longer apply. That doesn’t really tell us anything about how copyright should look, but does tell us that it will increasingly not function the way anyone wants.
We are on the same page regarding this being a descriptive (historical) rather than normative (justification) set of questions.
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