Fetishizing Copies

Abstract

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the idea that every appearance of any part of a work anywhere should be deemed a “copy” of it, and that every single copy needs a license or excuse. In this chapter, I focus on two well-known instances of copy-fetish: the contention that any appearance of a work or part of a work in the random access memory of a computer or other digital device is an actionable copy, and the assertion that the copyright statute’s distribution to the public right encompasses possession of any copy that is publicly accessible. Both arguments have their inception in difficult-to-justify court of appeals decisions, which were then embraced by copyright owners as tools to expand secondary liability. Neither one makes much sense on its own terms. The political economy of copyright, however, makes it overwhelmingly likely that any comprehensive copyright revision bill will incorporate both of them. That makes it imperative to recognize readers’, listeners’ and viewers’ copyright liberties expressly, and to protect them with explicit statutory provisions.