The Technological Transformation of Copyright Law

Abstract

Both statutory and case law clearly recognize the constitutional interest in promoting, not restricting, expression. Digital technologies, however, are rapidly changing the application of copyright law to prohibit access, protect ideas and facts, and dramatically expand the monopoly granted to copyright holders.

Whether on a disk or network, digital expression cannot be accessed without being copied into computer memory, as well as onto a hard drive, floppy disk, or magnetic tape if it is to be retained after the computer is switched off. This necessarily violates the exclusive right to reproduce that copyright law grants to copyright holders.

Moreover, to read or otherwise view digital expression on a computer screen, or to listen to it through computer speakers, the digital work must be "displayed" or "performed," within the meaning of copyright law. If that digital expression was downloaded from a computer network, the display or performance is "public" and violates the copyright holder's exclusive rights to publicly display and perform her copyrighted work.

In short, the very nature of the new technological environment causes current copyright law to protect facts and ideas, not merely expression. The law restricts subsequent use of those facts and ideas without the copyright holder's permission by forbidding access altogether. The technology is turning the law on its head. Rather than acting to counteract this technological transformation, federal regulators are seeking to codify it into law.

This article examines the technological transformation of copyright law and recommends a renewed focus on the constitutional mandate to tailor the monopoly conveyed by copyright law to the incentive necessary for creation and dissemination. In the digital information context, this would require amending or interpreting the law to prevent its use as a barrier to public access to information and to return it to its constitutional origins.

Keywords: copyright, Internet, technology