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The Digital Dilemma: A Perspective on Intellectual Property in the Information Age

INTRODUCTION Advances in technology have often posed challenges for intellectual property (IP) law. Congress has, for instance, periodically amended copyright law to regulate new technology products (such as photographs, motion pictures, sound recordings, and cable television) or new uses of works made possible by advances of technology. 1 In addition, new technologies have often given rise to contentious copyright litigations, such as those involving photocopying of scientific articles and home videotaping. 2 Given this history, it should not be surprising that the advent of digital technologies and networks would bring about some perturbations in intellectual property law. The first set of battles over Dilemma: Intellectual Property in the Information Age (2000) (cited hereinafter as " Digital Dilemma "). The authors of this paper were among the more active members of the Intellectual Property Study Committee that authored this report; Davis was chair of the Study Committee and its principal author. Some portions of this paper are drawn verbatim from the report (in particular, the inset conclusions, recommendations, and points of discussion) while other parts are the authors' summary of portions of the report. Most of the footnotes to this paper do not appear in the Digital Dilemma. 1 Prior to 1976, U.S. copyright law named specific types of protectable subject matter, such that when new technologies produced new categories of works, the law had to be amended to be extended to them. See, e.g., Copyright Act of 1909, sec. 5 (superceded). In addition, Congress sometimes had to amend copyright law when new technologies enabled new uses of old works (e.g., mechanical recordings of musical works). The Copyright Act of 1976 provides that " copyright subsists in original works of authorship that have been fixed in a tangible medium of expression, " thus obviating the need for amendments to make new technology products protectable. 17 U.S.C. sec. 102(a). However, new classes of works may still need special legislation to tailor copyright appropriately. See, e.g., 17 U.S.C. sec. 117 (OK to use computer program instructions in computer, make essential adaptations (e.g., fix a bug), and make backup copies). (home taping of television programs). 2 copyright and digital information focused on software copyrights and patents. 3 Intense in their day, these battles have now largely ended in a new status quo. 4 Equally or more intense have been more recent battles over the role of copyright on the Internet and the World Wide …