326109 PA567 1st Class.qxp 4/7/2006 12:01 PM Page 1 No. 567 April 26, 2006 Routing Amateur-to-Amateur The Rise of a New Creative Culture by F. Gregory Lastowka and Dan Hunter Executive Summary It is commonly said that copyright matters spread computer ownership, the rise of the because it encourages the production of socially Internet, and the development of social network- beneficial, culturally significant expressive con- ing software, threaten both the viability and the tent. Excessive focus on copyright law and policy, desirability of centralized control over the steps however, can obscure other information practices in the creative cycle. Those functions are being that also produce beneficial and useful expression. performed increasingly by individuals and disor- The functions that make up the creative cycle— ganized, distributed groups. creation, selection, production, dissemination, This raises questions about copyright as the promotion, sale, and use of expressive content— main regulatory force in creative information have historically been carried out and controlled practices. Copyright law assumes a central con- by centralized commercial actors. However, all of trol structure that applies less well to the creative those functions are undergoing revolutionary content cycle with each passing year. Copyright decentralization and disintermediation. law should be adjusted to recognize and embrace Different aspects of information technology, a distributed, decentralized creative cycle and the notably the digitization of information, wide- expanded marketplace of ideas it promises. _____________________________________________________________________________________________________ F. Gregory Lastowka is an assistant professor of law at Rutgers-Camden School of Law. Dan Hunter is an assistant professor of legal studies at the Wharton School, University of Pennsylvania. 326109 PA567 1st Class.qxp 4/7/2006 12:01 PM Page 2 Copyright’s Introduction tices. Part of the friction is also attributable sphere has grown to copyright’s extraordinary scope. The two Copyright law today is like Rome at the are closely related. to encompass height of its empire. Rome was the center of Whatever the root of the current friction, a wide range the world, and the Roman Empire stretched the populace today, more than at any time pre- of activities from Syria to Britain, practically to the limits viously, is a player in the creative cycle. The of the imagination. Over centuries, Rome had public is creating, selecting, distributing, and involving the expanded its borders until it influenced a vast recasting information and is increasingly production, multitude of diverse societies. Roman control being policed and monitored pursuant to lasted for centuries, but eventually Rome fell copyright laws. Copyright’s former consumers reproduction, when the barbaric Visigoths stormed Rome’s are now copyright’s amateurs—the creators, distribution, gates in AD 410. Some people surely saw the producers, and disseminators of content. That and use of sack of Rome as the end of culture and civi- has important consequences for our system of lization, yet one could also frame it, not as a copyright. information. fall, but as a transformation. Rome’s empire People speak of copyright “consumers” became a less politically unified set of social engaged in the consumption of information groups, states, and governments. “content,” and those terms are correct insofar Like that of Rome, copyright’s empire has as they point to the fact that payments are expanded aggressively in the past few cen- regularly made for books, movies, and music. turies, and it now dominates a vast terrain of But they are also misleading: They tend to information practices. From relatively hum- conflate the physical medium with the infor- ble origins in regulating book-printing mation contained on it. Copyright is a law monopolies, copyright’s sphere has grown to regulating information practices, not a law encompass a wide range of activities involv- about tangible products. ing the production, reproduction, distribu- Cars consume gasoline and people con- tion, and use of information. sume food, but the information that is the Copyright is by and large imperial: copy- subject of copyright can never be consumed.2 right owners, specialists, and stakeholders After a book is read, the information remains. shape the scope and enforcement of copyright As all concede, intellectual property is, in eco- laws. The citizenry, in their view, is the passive nomic terms, nonrivalrous. Talking about the beneficiary of the copyright regime and is consumption of information content creates a described as “readers,” “listeners,” “viewers,” or serious potential for confusion and demeans “consumers” of “content”—the product that the role that the public plays in creating the copyright specialists create. Though copyright universe of expressive content. law has grown largely inscrutable to the Instead of a model that posits separate greater public, that has not been overly signif- manufacturers and consumers, consider the icant: The public is not regarded as part of the creation of content as a feature of human content-production processes.1 expressive activity. The amount of expressive Like Rome’s empire, copyright finds itself content created by and available to individu- today under threat from its borders. People als today is staggering, and, surprisingly, are increasingly aware that they are being copyright law has little to do with it. The “taxed” by copyright’s restrictions, but they majority of Americans today have computers have only a vague notion of how allegiance to that give them regular access to the informa- copyright benefits them. That discontent is tion phenomenon known as the World Wide largely attributable to the fact that copy- Web. A recent Pew Internet study on the cre- right’s formerly passive consumer is increas- ation of online content by individuals found ingly an active participant in the creative that 53 million Americans have uploaded cycle. The average citizen feels copyright law works to the net, including writing, art, video, intruding on her personal information prac- and audio creations.3 2 326109 PA567 1st Class.qxp 4/7/2006 12:01 PM Page 3 The term “amateur-to-amateur” describes realm of all information and communication. the social phenomenon of popular informa- That line is increasingly blurred. The tangible tion creation and free distribution. The produc- fixation requirement in copyright law has joined er-participants in this process are “amateurs” with technological advances to increase the because they lack financial and proprietary amount of copyrighted material. Distributed- motives.4 The audience-participants are also network technologies are inherently problemat- amateurs because they generally do not pay for ic from the standpoint of copyright theory and the information that other amateurs create or enforcement. Peer-to-peer technologies like the the services they provide. They often build Internet are a substantially different type of upon, copy, select, and retransmit the original information technology than the technologies information in ignorance, and in technical vio- addressed by copyright in the past. lation, of copyright law. Emerging digital and network technolo- A leading example of such amateur partici- gies are challenging copyright law’s claim to pation in copyright processes is the social phe- prominence in creative information practices. nomenon of Web logs, or “blogs”: regularly Copyright has historically facilitated informa- updated and freely accessible Internet-based tion distribution by way of centralized and writings. The Pew survey indicated that some- integrated models of creation and distribu- where between 2 and 7 percent of U.S. Internet tion. Seven processes have traditionally been Emerging digital users were creating blogs in 2004. Web logs are chained together in this model: creation, selec- and network clearly protected by copyright and often link tion, production, dissemination, promotion, technologies are to other blogs or documents available on the purchase, and use. Until recently, all seven Internet. Millions of people write and read functions were conjoined out of necessity and challenging blogs every day, and during the past few years were under the control of centralized interme- copyright they have become a regular source of popular diaries. Only profitable works could be pro- law’s claim to news, information, and commentary. duced and distributed, and those works were Blogs are thus displacing, at least to some controlled, primarily, by integrated business prominence degree, the information and communication operations that took an intense interest in in creative space previously occupied by traditional protecting their business models through media such as television, radio, and newspa- copyright laws. The past model of centraliza- information pers. Yet people who write blogs are clearly not tion and focus on profit contrasts with the practices. acting in accord with the theory of copyright. present moment, in which the information The same can be said for those who post pho- practices that copyright affects are increasing- tographs, short stories, product reviews, and ly nonprofessional, socially distributed, and software programs to personal and communi- disintermediated. ty sites on the Web. Their motivations may be Two parallel spheres of information produc- based on the pursuit of reputation or self- tion exist today.