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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 07, 2005

A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright

Posted by Ernest Miller

Corante's Between Lawyers has an questioning post by Dennis Kennedy about the problems with current copyright law in handling typical consumer uses of copyrighted works (iPods and Time-shifting: Fair Use, Personal Use and the Digital Copyright Morass).

We now live in an amazing time when I can listen to a song on a variety of players, indoors, outdoors, in the car, on a network, wirelessly, and many other ways. Increasingly, especially after I own an iPod, I want to listen to my music where I am, in the most convenient way possible. I do not to become a licensing or copyright specialist.

Here’s where the difficulty lies. I believe that what I am doing is playing my music and listening to it. Unfortunately, in our digital world, what is also happening is that we (or our computers, other hardware and software) are making many, many copies of the digital information carrying the song as we listen to our music in many ways and in many places.

And thus, we enter the realm of copyright law, and how it doesn't seem to make a lot of sense quite often. Leading Kennedy to conclude:
My thought, and what prompted the title of this post, is that we are overdue for a reconsideration of the practical meaning of copyright law for real people in a digital world and that the subject of defining a “personal use” exception to copyright infringement that reflects the way people normally behave that would be separate from “fair use” should be considered and debated, while leaving the “fair use” doctrine in place to cover what it was intended to cover. In a sense, I’m advocating something in the spirit of what my friends at rethink(ip) raise in the title of their blog.
Welcome to the discussion, Kennedy! This is something that we copyfighters have been talking about for quite some time.

Others have different views, but I'll try to provide my perspective on how we should resolve some of these issues. First, as I've said time and time again, "copying" is no longer a meaningful (if it ever was) fundamental aspect of copyright. Kennedy:

Copyright law deals with reproductions and copies. What copying is allowed and what is not? Is automatic “copying” as part of the normal mechanical or computer process (e.g., your browser caching a copy or two of this page while you read it) an infringing kind of copying? There certainly have been court decisions that would lead you to that conclusion, even though that’s a very unexpected result.
Why in the world should we think that copyright is about copying? No one is harmed by mere copies. It is only when those copies are distributed that there is an issue. One million bootlegs at the bottom of the ocean cause no harm; it is only when they are distributed that the copyright holder has any cognizable right to complain. Trying to figure out whether copies cached on a hard drive, or stored in RAM (is that persistant or nonpersistant RAM?) is only asking for trouble. What does it mean to say that something is an exclusive right and then carve out so many exemptions in the "exclusive right" that more copies are exempt than are actually infringing?

If we focus on the question of distributions, many of these problems simply go away.

Most of the questions Kennedy raises about personal use copying would never even come up under a distribution-focused regime because copying, by itself, would no longer be an exclusive right of the copyright holder. If the copy is for personal use, there is no distribution, and copyright doesn't become an issue.

Kennedy also discusses the typical fair use defenses to personal use copying under the current regime.

Historically, we have looked at “fair use” to cover the normal, expected ways that someone might make use of a creative work without infringing the copyright. There’s a well-known four-part test for determining whether a use is a fair use. One of them is the extent of the copying. .In a digital copy of a song, you have a perfect copy of 100% of the work. You fail that part of the fair use test every time and you have to make your stand on the other factors, which, frankly, don’t relate to playing your favorite music wherever you want to play it.
Well, actually, that isn't really the history of fair use. Fair use was an outgrowth of fair competition law and governed whether one might use parts of one work in another, such as for review and commentary. Uses by the consumer were considered "normal uses" since they didn't involve competition with the copyright holder publisher. This actually illuminates that the original understanding of copyright as involving distributions to the public, not private uses. Of course, with the codification of fair use as well as the right of reproduction, we suddenly find fair use attempting to do things it was never meant to protect.
I’ve lately started to feel, as have others, that there is a certain common sense approach to the use of digital copyrighted materials that (1) reflects our normal expectations about what we should be able to do with a copyrighted work just to use it in ordinary ways that do not seem to hurt the author of the work and (2) recognizes that the more we try to stretch the notion of fair use to cover these normal uses, the more we risk fracturing the protections that the fair use doctrine does provide.

These are points I've been harping on for years. Michael Madison wonders if they're really all that helpful (Currency):

Ernie is down on Julie Hilden for focusing on last century’s theme – copying – and overlooking the meme of the new century – information distribution and circulation. I’m not persuaded that copyright-in-information-as-current-that-flows is superior to copyright-in-work-that-gets-reproduced as an organizing theme. “Information” becomes the analytic fiction of the 21st century, just as “the work” was the analytic fiction of the 2oth century. We still have to look inside the thing – dynamic or static as it may be – and work out what we’re trying to do, or say, via the law.
Ultimately, copyright is about controlling information. We can debate what we're trying to do with copyright til the cows come home, but we're still dealing with controls over information. It makes sense to apply analytic tools that are consistent with this fact.

Furthermore, there are other areas of law that also deal with the flow of information, for example the First Amendment and telecommunications law. One of the great problems we are having today in copyright law is reconciling First Amendment interests and copyright. Might be handy if we could use a similar analytic framework (it's all about the distribution). The same goes for telecommunication law and its intersection with the First Amendment and copyright.

Finally, analytic frameworks make a difference in trying to decide what it is "we're trying to do, or say, via the law." Our view of the what the law should be is inevitably shaped by our view of what analytic tools are available to law. Setting legal goals does not take place in a vacuum that ignores the analytic tools at our disposal. Personally, I think my framework will help us achieve a better understanding of what it is we are trying to do: spur creation and distribution of information. If what we are trying to do is ensure better distribution of information, makes sense to think in terms of distribution, does it not?

The above also answers, I think, Marty Schwimmer's question to Dennis (iPods and Timeshifting):

Why do you worry about this sort of stuff?
Because it is important to a proper understanding of copyright law.


Kennedy, ahem, Dennis, has a few additional comments (Dennis Re Marty on iPods and Time-shifting).

Comments (1) + TrackBacks (0) | Category: Copyright | Network Law


1. Crosbie Fitch on June 10, 2005 05:25 PM writes...

For god's sake, this is overcomplicating the issue.

Artist performs. Audience pays. Quid pro quo.

It's not the copy, but the reception.

Whomsoever receives my work, so shall he pay.

Let's just switch it to "If you want it, make me an offer"

Copyright is dead.

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