Technology and Uncertainty: The Shaping Effect on Copyright Law

Abstract

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.

Keywords: copyright law, timing, technology, social norms

JEL Classification: K11, K19, K40, K42