Modern Technology, Leaky Copyrights and Claims of Harm: Insights from the Curious History of Photocopying

Abstract

Over the last half century, as each new technology that facilitates private, noncommercial copying of copyrighted works has emerged, segments of the copyright-owning community have predicted destruction of their markets. Not only has this not happened, but in fact it has been quite difficult to substantiate much, or even, any harm to the financial incentive system that copyright supports. The oldest of these technologies is photocopying, and it is also the one that was subject to intense scrutiny over the decades. It makes, therefore, an interesting case study with the potential to throw light on why harm from noncommercial copying has been so difficult to demonstrate. This Article follows the photocopying dispute from its inception, and concludes that virtually all the evidence that was used to support claims of harm to the publishing industry from its use turned out to be from other, often less sympathetic, causes. The Article concludes not only that private and noncommercial copying of text should be given far more generous treatment as a fair use than it currently receives, but that both courts and Congress have reason to scrutinize with far greater rigor than they have shown thus far claims of harm from personal and noncommercial copying using other technologies.

Keywords: photocopying, proof of harm, copyright infringement, fair use

JEL Classification: K19, K23, K39