Envisioning Copyright Law's Digital Future

Abstract

Copyright initially developed in response to the printing press and gradually evolved to encompass other methods of mechanically storing and reproducing works of authorship, such as photography, motion pictures, and sound recordings.The advent of broadcasting -the ability to perform works at distant points -led to the expansion of copyright to encompass exploitation of creative expression in new markets.The digital revolution represents a third distinct wave of technological innovation that portends significant changes in copyright protection.By bringing about new modes of expression (such as computer programming and digital sampling of music) and empowering anyone with a computer and an Internet connection to flawlessly, inexpensively, and instantaneously reproduce and distribute works of authorship on a wide scale, digital technology represents possibly the most profound challenge to copyright law.This article divides the analysis of digital technology into two categories: (1) squeezing computer software within copyright's non-functionally oriented protection regime and (2) developing new rules and governance institutions to address the ease of reproduction and porosity of the digital platform.Part I of the article traces the two decades of evolution of copyright protection for computer software and demonstrates that copyright law has proven quite adaptable to this hybrid of expressive and utilitarian creativity.The courts have enabled copyright law to serve effectively as an anti-piracy regime without allowing it to intrude unduly into patent law's domain.This holding of the line has in fact moved the battles over legal protection for software into the patent and contract realms.Part II explores the implications of digital distribution of content for copyright's future.Content industries perceive grave threats to their continued existence (and the production of creative works) while technology companies and a growing array of consumer, programmer, and civil liberty organizations fear that further expansion of copyright protection jeopardizes technological innovation and basic civil liberties.A growing cadre of legal academics predict copyright's ultimate demise.As a basis for assessing these claims and understanding the implications of this new and rapidly improving digital platform, this article examines the technological changes taking place, industry structures, legal environment, and evolving social and political landscape.Although these forces remain in flux, the digital revolution can be seen increasingly to shift resources and pressure for reform toward copyright enforcement, standard setting (in an effort to develop effective * Professor of Law, University of California at Berkeley School of Law (Boalt Hall) and Executive Director, Berkeley Center for Law & Technology.I owe a great debt of gratitude to Judge Jon O. Newman, for whom I clerked in 1986-87, for enriching my understanding and interest in so many areas of the law, but none more than

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