A Symposium Honoring Judge Jon O. Newman’s Thirty Years on the Bench forthcoming New York Law Review © 2002 Peter S. Menell Envisioning Copyright Law’s Digital Future Peter S. Menell1 “May you live in interesting times.”2 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 1 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 copyright. Mark Lemley and David Nimmer provided valuable comments on an earlier draft. I also thank Kate Williams and Matt Staples for research assistance. 2 Attributed to an ancient Chinese curse. See NOBLE (North of Boston Library Exchange), Reference File (“May You Live in Interesting Times”) <http://www.noblenet.org/reference/inter.htm.> (visited Apr. 29, 2002); infra p.__ <conclusion> -1- claims and understanding the implications of this new and rapidly improving digital platform, this article examines the technological changes taking place, industry structures, the legal environment, and the 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 controls on content distribution), antitrust regulation of standard setting processes, and a more general transformation of copyright law from a property rights orientation toward a regulatory regime. Like the printing press and broadcast technology, the digital revolution represents a third profound set of opportunities and challenges for those engaged in the creation and distribution of original works of authorship and the consumer products that allow these works to be perceived, reproduced, altered, and distributed. It also actuates lobbyists, legislators, jurists, and scholars to rethink the legal regimes governing these activities and industries. Digital technology has enabled new modes of expression (including computer programming, synthesized music, video games, multi-media works), dramatically reduced the costs for artists and authors to compose new works (for example, recording artists today can record and mix professional quality recordings using relatively inexpensive recording equipment and software), and opened up vast networks for the distribution of expressive works. Copyright law has served as a principal means for protecting works of authorship for nearly three centuries. It would be a mistake, however, to view copyright as a static body of law. Its very contours have been shaped by advances in the technologies of creating, reproducing, and disseminating such works.3 Copyright 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. By bringing about new modes of expression (such as computer programming) and empowering anyone with a computer and an Internet connection to flawlessly, inexpensively, and instantaneously reproduce and distribute works of authorship, it represents possibly the greatest set of challenges to the copyright law. Although digital technology became a reality more than 50 years ago, the only adjustments made to copyright law to address this new technology until a decade ago consisted of the addition of a brief definition of “computer program”and authorization for those who lawfully acquire computer programs to run such programs on their computers and make a 3 See Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (1994); Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275, 353-54 (1989). -2- backup copy.4 The past decade, however, has witnessed rapid evolution of case law applying copyright law to the protection of computer programs and a deluge of new provisions driven by the threat of unauthorized reproduction and distribution of copyrighted works by means of computers and networks. More pages of copyright law have been added to the U.S. Code in the past decade than in the prior 200 years of the republic, dating back to the first U.S. Copyright Act adopted in 1790. The explanation for this upheaval reflects two distinct ways in which digital technology “challenges” copyright law. The first concerns the copyrightability of computer software. As written expression intended to serve utilitarian purposes (instructing machines), computer software does not fit comfortably within the copyright scheme. Copyright law protects expression, but excludes function so as not to impinge upon patent law’s more exacting threshold and shorter duration for protection of utilitarian works. Yet Congress’ pragmatic decision to extend copyright protection to software (while at the same time reaffirming the exclusion of functionality) posed substantial challenges for the software industry and the courts. After some early struggles that threatened to afford software developers far-reaching control over basic features of computer technology through copyright law, the federal courts have, following the Second Circuit’s lead in the Altai case, developed and implemented a practical test for distinguishing idea from expression in software programs that finessed the metaphysical dilemmas and avoided the creation of undue economic power in computer markets.5 Copyright law provides a thin layer of protection for computer software, effectively prohibiting wholesale piracy of computer programs without affording control for interface specifications and other essential elements of computer functionality. The courts have also allowed subsequent software 4 The grand overhaul of copyright law enacted in 1976 paid scant attention to the novel issues and challenges posed by digital technology. The legislative history of the 1976 Act, however, acknowledged that “computer data bases, and computer programs, to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves” fall within the definition of “literary works” covered by the Act. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 54 (1976). Congress had, in 1974, referred the question of how best to address the protection of computer software to the National Commission on New Technological Uses of Copyrighted Works (CONTU). Act of Dec. 31, 1974, Pub. L. No 93-573, § 201, 88 Stat. 1873. In its 1979 report to Congress, CONTU concluded that the intellectual work embodied in computer software should be protected principally under copyright law. National Commission on New Technological Uses of Copyrighted Works, Final Report (1979). Congress adopted this recommendations a year later in the Computer Software Copyright Act of 1980, Pub. L. No. 96-517, 94 Stat. 3007, 3028 (codified at 17 U.S.C. §§101, 117). A 1990 amendment prohibited the rental of computer