MODERN TECHNOLOGY, LEAKY COPYRIGHTS, AND CLAIMS OF HARM: INSIGHTS FROM THE CURIOUS HISTORY OF PHOTOCOPYING

摘要

The core problem this article attempts to address is what should count as "economic harm" in determining whether particular kinds of copying are appropriately treated as copyright infringement. When copying occurs in a commercial setting, concrete evidence of harm is often available, but even where it is not, Congress and courts have been generally (and appropriately) comfortable in inferring that the copyright owner's legitimate interests probably have been interfered with; hence provision is made for the award of statutory damages. But what if the copying is not commercial in any ordinary sense? Over the past sixty years or so, the advent of copying technologies has allowed individuals to reproduce content on a small scale for personal or small-group use, and the question of economic harm to copyright owners in these instances has been far more contested. Today, serious disagreements exist about whether or not private copying is always, or at least often, harmless to owners, and hence should fall outside the reach of copyright. The argument that owners should be entitled to control all such copying could rest on a pure property-rights foundation — I own it and therefore the user must have my permission to use it. But the more common explanation for why noncommercial copying is a violation of the letter and spirit of copyright is that it does cause economic harm, albeit in a way that is subtle and cumulative. Death by a thousand cuts, copyright owners claim, is still death, and as such wholly inconsistent with the maintenance of a healthy environment for the production and distribution of information goods. The argument that copying without permission, especially on the Internet, is per se harmful has led to a variety of increasingly stringent selfhelp and legislative measures designed to prevent and to punish the activity, although often without evidence of success. But researchers who study such things continue to find evidence of the damage, at least from noncommercial activity, elusive. The reasons this might be so, and the inferences to be drawn from it, are an interesting subject for copyright theorists to consider, but so far very little serious attention has been paid to examining the phenomenon. This article is an effort to begin filling in that blank by setting out a case study of a rampant form of copying technology that long pre-dates the internet: photocopying. In many ways, the photocopying story is a microcosm of what happens when a new technology bursts onto the copyright scene, and as such, it is a possible source of learning about how copyright should treat the issue of noncommercial copying generally, whether it occurs compliments of Xerox, or compliments of your regional ISP. What the article concludes is that very little evidence exists to support the claim that adequate copyright protection requires assuring owners virtually airtight control over their works. Copying frequently does not lead to demonstrable economic loss, suggesting that considerable room exists for compromise between the public's desire for free access, and the owners' interest in retaining incentives to produce. Furthermore, the paper concludes that greater breathing space for unlicensed copying can reduce, in some significant situations, the opportunity for socially harmful rent-seeking to occur.