The Copyright Wars
INTRODUCTION TO INFRINGEMENT NATION: COPYRIGHT 2.0 AND YOU, Oxford University Press, 2011
17 Pages Posted: 2 Nov 2011 Last revised: 5 May 2015
Date Written: October 15, 2011
In the twenty-first century, copyright impacts us all. Written on the occasion of copyright’s 300th anniversary, Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011) analyzes the history and evolution of copyright law and assesses its vitality in the digital age. This Introduction, The Copyright Wars, provides an overview of the book and its central themes.
The Copyright Wars begins by highlighting three key trends: copyright law's increasing relevance to the daily lives of average Americans, the heightened public consciousness over copyright issues precipitated by this reality, and the way in which both legal and technological changes have called into question the growing disparity between copyright law and copyright norms. This law/norm gap has created a policy stalemate, and new theaters of operation for the copyright wars have debuted as skirmishes have moved outside of their traditional venues (Congress and the federal courthouses) into some basic American institutions previously removed from the fray. From the misadventures of Captain Copyright – the Canadian Copyright Counsel's educational superhero dedicated to the fight against infringement – to the the MPAA's "Respect Copyrights" merit badge, both classrooms and key youth-oriented institutions such as the Boys Scouts have emerged as battlegrounds where interested parties have sought to mold the views of future generations toward copyright law.
The Copyright Wars then provides a synoptic review of Infringement Nation, which is organized around the trope of the individual in five different copyright-related contexts – as an infringer, transformer, consumer, creator and reformer. Using an array of examples – from the unusual origins of Nirvana's Smells Like Teen Spirit, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Captain Kirk's reincarnation and Holden Caulfield's maturation – the book questions some of our most basic assumptions about copyright law. In the process, Infringement Nation presents a balanced critique of both the troubling overextension of the copyright monopoly in many contexts and the inadequacies of current law in vindicating the rightful property interests of many American content creators.
Chapter One (The Individual as Infringer) highlights the unseemly amount of potential liability an average person could ring up in a single day if rightsholders were to prosecute infringements to the maximum extent allowed under law. Chapter Two (The Individual as Transformer) documents the counterintuitive role of the fair use doctrine in radically expanding, rather than limiting, the copyright monopoly. Chapter Three (The Individual as Consumer) weighs the important expressive interests at play in even the unauthorized use of copyright works. Chapter Four (The Individual as Creator) critiques the surprising failure of American copyright law to provide sufficient legal protection for the vast majority of content creators, despite our rhetorical support for strong intellectual property protections and our international treaty commitments. Finally, Chapter Five (The Individual as Reformer) concludes by advancing concrete policy proposals aimed at achieving three goals: (1) restoring the balance between users of and rightsholders to copyrighted content; (2) tempering the disparity between copyright law’s treatment of sophisticated and unsophisticated parties; and (3) recalibrating the relationship between transformative users and original creators of copyrighted content. All told, the book makes a case for reform of existing doctrine and the development of a copyright 2.0.
Keywords: copyright law, infringement, piracy, intellectual property, technology, digital society, culture, expressive rights, free speech, legal history, doctrinal evolution
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