2017 Postscript to Digital Copyright

Abstract

In this postscript, written to accompany the 2017 re-release of my book Digital Copyright under a CC-BY-ND Creative Commons License, I review what has become of the Digital Millennium Copyright Act in the past decade. I conclude that the worst threats that the law appeared to pose to access to knowledge and freedom of expression have not (yet) materialized. The tools that legacy copyright owners secured to protect their ways of doing business proved less useful to them than they had hoped. Efforts to use technological protection to prevent unauthorized uses of copyrighted works have so far failed to live up to their promise. Entertainment and software industry efforts to prevent the emergence of new digital competitors by filing infringement lawsuits against any and all upstarts decimated many promising businesses, but ended up clearing the field for Apple, Amazon, and Google to become dominant distributors of copyrighted works, much to legacy copyright owners' chagrin. The online service provider safe harbors had been designed for a world in which the Internet would be dominated by commercially produced content, and files posted by individual consumers would be easy to find and to block. The explosive popularity of content posted by users took copyright owners by surprise. In the face of thousands and then millions of alleged infringements, both copyright owners and service providers have resorted to automated solutions that are both expensive and overinclusive. In the past several years, copyright owners have insisted that the safe harbors assign to them unreasonable copyright enforcement burden. Efforts to persuade Congress to revisit the question, though, have not so far succeeded.

Congress, the Copyright Office, and copyright lobbyists are now gearing up for another effort at comprehensive copyright revision. I expect it to take a long time, to motivate many and large campaign contributions, and to eventually produce pretty much the same sort of law that negotiated copyright revision has generated in the past. We seem to be incapable of learning from our past mistakes.

Book is available at: https://ssrn.com/abstract=1468400.

Keywords: copyright, internet, DMCA