Technology and Uncertainty: The Shaping Effect on Copyright Law
University of California Hastings College of Law; Ghent University - Center for Advanced Studies in Law & Economics
June 15, 2009
University of Pennsylvania Law Review, Vol. 157, 2009
University of Miami Legal Studies Research Paper No. 2009-21
This Article examines the symbiotic relationship between copyright law and technology. I describe how an environment characterized by rapid technological change creates two conditions that determine the direction and evolution of copyright law: legal delay and legal uncertainty. I explain how uncertainty over the application of existing copyright law to newly emerging technology catalyzes the actions of copyright owners and users. I argue that uncertainty and delay (1) have an enabling effect on anticopyright sentiments, (2) lead to a greater reliance on self-help efforts by content providers and users, and (3) induce legislative involvement in copyright law. In the final Part of this Article, I consider how the framework of technological uncertainty and delay helps to explain a number of emerging issues in copyright law. I conclude by providing normative proposals for copyright reform. These proposals relate to the choice between standards and rules, as well as the role of courts, legislators, and administrative agencies in the development of copyright law.
Number of Pages in PDF File: 39
Keywords: copyright law, timing, technology, social norms
JEL Classification: K11, K19, K40, K42
Date posted: June 17, 2009 ; Last revised: November 12, 2012
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