Taking the Copy Out of Copyright

Abstract

Under current U.S. law and common understanding, the fundamental right granted by copyright is the right of reproduction — of making copies. Indeed, the very word “copyright” appears to signify that the right to control copying must be a fundamental part of any system of copyright. Nonetheless, we claim that this assumption is incorrect. The advent of digital documents has illuminated this issue: In the digital realm, copying is not a good predictor of intent to infringe; moreover, copying of digital works is necessary for normal use of those works. We argue that the right to control copying should be eliminated as an organizing principle of copyright law. In its place, we propose as an organizing principle the right to control public distribution of the copyrighted work.

Supported in part by ONR grants N00014-01-1-0795 and N00014-01-1-0447 and NSF grant CCR-0105337