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The Relevance of “Unenforced” Copyright Law

In reading the Kirstaeng decision, I was struck by some comments in both the majority and dissenting opinions that may say something broader about copyright law that is often present in situations involving defenses like first sale and fair use, but that we don’t often discuss expressly.  Both the majority and the dissent talk about the practical realities of copyright enforcement and what it means for copyright law when an apparent legal entitlement is not often enforced in practice.  I’m taking the following comments out of context on purpose because I’m interested in what they may illustrate about underlying attitudes to copyright law.

At one point (p 24 of the slip opinion), the majority notes that “a copyright law that can work in practice only if unenforced is not a sound copyright law.”  (This is in respect to the argument that the fact that harm to copyright users has proved limited to date might reflect the reluctance of copyright holders to assert geographically based resale rights.)  The dissent, in contrast, notes that Kirtsaeng had not cited any cases in which the owner of a consumer good had been sued for copyright infringement after reselling it or giving it away (p 30), and that if copyright owners were “champing at the bit to bring lawsuits against libraries, art museums, and consumers in an effort to exercise perpetual control over the downstream distribution … of foreign-made copies” there should be case law that evidences this fact (p 31).  The dissent also notes that “routinely suing one’s customers is hardly a best business practice” (pp 30-31) – in the context of concerns about electronic components contained in cars, TVs etc.

While these comments are all related to specific aspects of the decision, they may have much broader application in terms of how we see copyright law.  In the context of fair use, for example, isn’t one of the main challenges of the digital age the fact that things that were assumed to be fair use in the pre-digital world (making a mixed tape, for example) are not so clearly a fair use in the peer-to-peer file sharing context.  Did copyright law really condone the making of a mixed tape that was of poorer quality than the original version and that was not easily disseminated to thousands or millions of people at the push of a button?  Or was it simply that there was no practical point in suing makers of mixed tapes because they didn’t significantly impact the copyright holders’ markets?  This may not be the best example because obviously the impact on the market is one of the fair use factors.  But I’m really more interested in the idea of what relevance courts should give the fact of historical enforcement or non-enforcement of a right as being in some way determinative of, or relevant to, whether the right (or a valid defense to the right) actually exists.