This brief article examines two recent copyright cases brought against the Internet Archive and explains how the outcomes of these cases might impact the libraries and librarians, library patrons, and the general public. The first case, Hachette v. Internet Archive involves the development of the Open Library for controlled digital lending. The second case, UMG Recordings, Inc. v. Internet Archive involves music recording companies suing the Internet Archive for its "Great 78 Project." In both cases, the impact will be felt by the general public and copyright law will inevitably be shaped by the outcomes as well. Thus far, the publishers are winning these lawsuits and while some authors may applaud the outcomes, librarians are watching them with interest and sadness. These battles will continue to be fought, if not in the courtrooms, in the legislative branches state by state.
Is copyright law a naked emperor whose garments are shed every few years or decades when a new technology comes into the market? From printing presses to generative AI, history reveals a recurring impulse to adjust copyright law with new technological advancements. Does technology strip copyright bare, or is this a result of a well-regulated discourse that makes it look so? Using Foucauldian ideas, this short essay problematizes this pervasive "new technology, new copyright policy" trend, arguing that it stems from the "balance" discourse-a pervasive mode of thinking that has become dominant in the last few recent decades that frames copyright as a zero-sum tool mediating between authors' rights and the public interest.
Copyright scholars and policymakers have largely approached the shift from analog to digital media through the lens of copy-making and sharing, often overlooking the inherent fragility and ephemerality of digital objects due to their dependence on specific software and hardware. This software dependency poses a significant threat to long-term access to digital cultural heritage, from historical newspapers and architectural records to video games and scientific research, as obsolete or commercially unavailable software renders these digital files meaningless. While the challenges of technological obsolescence, media fragility, and market failures have long been recognized by librarians and archivists as harbingers of a "digital dark age," the specific implications of software copyright for cultural preservation have been largely absent from policy discussions. This paper argues that the Supreme Court's decision in Google v. Oracle offers a critical turning point for addressing the copyright impediments to software preservation and access. Justice Breyer's majority opinion, informed by his long-standing scholarship on software copyright, articulates a robust understanding of fair use, particularly its application to functional works like software. By emphasizing the "transformative" nature of uses that enable new purposes (such as teaching and research) and by clarifying that copying entire works can be fair when tethered to a valid transformative purpose, Google v. Oracle provides a strong legal foundation for cultural heritage institutions. Coupled with the insights from Apple v. Corellium, the Code of Best Practices in Fair Use for Software Preservation, and successful DMCA rulemaking exemptions, this ruling empowers libraries and archives to leverage fair use to ensure the enduring accessibility of software-dependent digital heritage, thereby realigning copyright with its fundamental purpose of promoting progress.
This Essay, delivered as the 2024 Donald C. Brace Lecture, reveals the increasing convergence of right ofpublicity and copyright laws. This convergence requires us to reconsider some accepted conclusions about copyright and to question whether copyright is the appropriate or best frame going forward to address the rising challenges posed by deepfakes, digital replicas, and voice clones. Better understanding the ways in which copyright already extends control over a persons' identity, and may expand further to do so, has never been more essential. Copyright law can protect personality rights and privacy, but if not properly circumscribed it can also be a mechanism for owning a persons' attributes and controlling and silencing that person. If we address digital replicas and voice clones by extending copyright protection to them or using a copyright-based paradigm to do so-which is the direction we are going-we must revisit copyright doctrines that unduly limit the agency of subjects captured in copyrighted works and copyright laws' allowance of largely unfettered transferability. We must better design copyright to protect people when they become captured in copyrightable works. If we do not embrace this personality-inclusive vision of copyright law, then we must instead more rigorously enforce copyrights' boundaries, and limit its encroachment on personality rights.
Napsters'launch in 1999 disrupted the copyright landscape, leading to more than a decade of innovation in laws, technologies, and business models as industries struggled to adapt. Today, AI technologies are poised to disrupt at least as much as file-sharing did. What lessons can we learn from the file-sharing experience-both positive and negative? We hear from attorneys, technologists, and policy wonks who lived through the post-Napster era as they offer their thoughts on how to navigate the decade to come.
