War Stories

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The copyright law is in the midst of revolutionary change. We are remaking our world as we adjust to networked digital technology. The borders between legitimate and illegal behavior are the subject of bitter dispute. What we have come to call the conventional entertainment industries-movie studios, music publishers, record companies-have declared war on the new digital media, and the courtrooms are battlefields. It is by now a cliche that the Internet enables individuals to communicate with one another without needing to rely on traditional intermediaries. Novelists can reach readers without a printing press, a publisher, a book distributor or bookstore. Consumers can find music without going through record stores, radio stations, record companies or music publishers. Filmmakers can exhibit their films without movie studios, movie theaters, or even film. That's threatening, of course, to the traditional intermediaries. It also poses a fundamental problem for copyright policy because our law has been designed to funnel compensation to creators by regulating the behavior of intermediaries. The copyright statute doesn't give copyright owners the exclusive right to use their works for limited times, or the exclusive right to exploit their works commercially for limited times. Instead, it gives copyright owners the exclusive rights to reproduce, adapt, distribute to the public and publicly perform or display their works, subject to a host of statutory exceptions. The design of the whole 205-page edifice orders the behavior of writers and publishers, composers and record companies, directors, movie studios and movie theatres, and broadcast, cable and satellite television. It does not have a lot to say about the behavior of individual consumers, because the last time it went through a fundamental overhaul was twenty-five years ago, when the behavior of individual consumers seemed like a de minimis concern.