The Quiet Revolution in American Copyright Law

A quiet revolution is stirring in American copyright law. Historically, copyright law requires anyone whose use of a copyrighted work comes within one or more of the copyright owner's exclusive rights to first obtain the owner's permission to make the use. Yet, developments in US law over the past decade have cast this central precept into question and may portend similar developments in other countries in both the civil and common law world.

In 1998, as part of the Digital Millennium Copyright Act, the US Congress introduced several ‘safe harbors’ to insulate Internet service providers from monetary liability for their copyright infringements; these safe harbors reverse copyright's usual operation by effectively freeing Internet service providers to copy and display copyrighted works on their sites, and by shifting to the copyright owner the burden of requesting its work's removal if it is to obtain even partial relief. An Orphan Works bill introduced in Congress in May 2006 would limit the remedies available to copyright owners against copyright users who could not reasonably locate them to obtain a license. Also in May 2006, the US Supreme Court handed down eBay Inc. v. MercExhange, a patent decision that asserted in dicta that copyright injunctions are to be granted not automatically — as has been common practice — but rather as a matter of equitable discretion. (Withholding injunctive relief effectively frees the infringer to use the copyrighted work, subject in the usual case only to payment of a sum comparable to what the infringer would have paid had it first sought out the copyright owner and negotiated a license.)