Twenty Years of U.S. Digital Copyright: Adapting from Analog

Article Source: Developments and Directions in Intellectual Property Law. 20 Years of The IPKat, Eleonora Rosati and Hayleigh Bosher (eds.), Oxford University Press (forthcoming 2023); Columbia Public Law Research Paper No. 14-708
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From 2001 to 2021, digital technologies have challenged U.S. copyright law. Key copyright concepts affected include the scope of exclusive rights, fair use, and liability of online service providers for infringement.


Policy Relevance:

Congress intended copyright law to evolve as technology advanced. Congress should reform “safe harbor” laws that protect online service providers from liability.


Key Takeaways:
  • Digital technologies challenge the scope of exclusive rights created by the U.S. Copyright Act, including the creator’s exclusive right to reproduce and distribute copies of a work.
    • Technologies that enable users to download illicit copies infringe copyright if the service provider commits a "volitional act" in making the copy, such as choosing the content available to the user.
    • A consumer's sale of a digital copy of a work to another consumer is not permitted under the "first sale" doctrine, even when the seller destroys his own copy.
  • In ABC v. Aereo, The Supreme Court ruled that an internet television service that allowed only one consumer at a time to view each copy of a broadcast infringed the right of public performance; if a “public performance” only results when many people can receive the same transmission, on-demand delivery would be exempt from the Copyright Act.
  • In Perfect 10 v. Amazon, the Ninth Circuit ruled that a defendant cannot be directly liable for providing a hyperlink to works stored on the original provider's server, known as the "server rule.”
    • Some courts have rejected this rule.
    • The server rule is inconsistent with the intent of Congress that copyright evolve along with technological progress.
  • The idea of technological fair use has expanded in the last twenty years, especially in cases involving a work with a "transformative purpose."
    • A work has a transformative purpose when the copied work has a new meaning, even if no new work is created.
    • Search engines' practice of storing works for indexing is a permitted technological fair use.
  • Google Books "snippet view" of books was a noninfringing fair use, as the snippet is fragmentary and does not substitute for the original work; traditionally, a use may be transformative, but will not be considered a fair use if it harms the market for the copyrighted work.
  • In 2021, the Supreme Court ruled that Googles’ copying of thousands of lines of Sun Microsystems application programming interface code was a fair use; the Court emphasized these factors:
    • Portions of the code might be uncopyrightable ideas.
    • Google's use of the code, originally developed for personal computers, was transformative, in giving third-party programmers the opportunity to use the code for smartphones.
    • Sun's lost revenues must be weighed against the public benefits of Google’s use, such as competition and innovation.
  • If all copying that creates a new product is a “transformative fair use,” any copying short of piracy would be allowed; traditionally, a film producer who made a movie based on a novel without purchasing film rights from the novelist could not argue that the movie was a fair use.
  • The Digital Millennium Copyright Act (DMCA) insulates online service providers from liability for users' infringement, so long as the provider lacks actual knowledge of the infringing activity.
    • Service providers may not be "willfully blind," but need not investigate suspected infringement.
    • If the work itself includes information that the uploading was unauthorized, such as a watermark, the host will be considered to have actual knowledge.
  • The DMCA safe harbor creates an imbalance; copyright owners are compensated only by proving after the fact that distribution violated their rights, rather than by licensing rights for compensation before the work is distributed.
  • The tangible copies of a work are less important, as consumers no longer need a hard copy to enjoy the work; NFTs, which create unique digital copies of a work, reveal some demand for exclusive ownership.



Jane Ginsburg

About Jane Ginsburg

Professor Ginsburg received her M.A., from the University of Chicago in 1977, and her J.D. from Harvard in 1980. She was a Fulbright grantee at the Université de Paris II, and received her Doctor of Law degree there in 1995. She spent three years in private practice before teaching, and served as law clerk to Judge John J. Gibbons, U.S. Court of Appeals for the Third Circuit.