It’s the early 1990s. You’re driving home from school with your friend when “Losing My Religion” by REM comes on the radio. “I love this song!” she yells, knocking your awkwardly oblong “car phone” out of the cigarette lighter as she lunges for the volume dial. Deciding to do your friend a solid, you plug a blank tape into your cassette recorder upon returning home and proceed to make her an REM mixtape with “Losing My Religion” as track number one. You take it to her the following night with a six-pack of Zima Gold and a large pizza. You’ve just completed an information transfer via the “sneakernet”: a colloquial term describing the process of sharing electronic information by physically transporting it from one location to another. Record labels, production companies and other copyright-sensitive rights holders have seldom taken issue with this sort of sharing.
Fast forward about twenty years. Your daughter starts a business that allows individuals to transfer their MP3 files to a central server and share in the profit when their files are purchased from the server by someone else. Despite being careful to stipulate that her customers must delete their files upon transferring them to her company’s server, your daughter only makes sales to a few customers —including, for symmetry’s sake, your REM-fan-friend’s daughter—before she is sued for copyright infringement. Why did your daughter’s sharing activity result in legal action while yours did not? Both you and your daughter transferred information on a small scale. Both you and your daughter seemed to engage in distribution activities that fell within the bounds of our Copyright Act’s “first sale doctrine” (the principle that allows an individual who has lawfully received a copyrighted work to by and large dispose of that work as he or she sees fit).
The answer: the growth of new technologies has made finding copyright infringement immeasurably easier. During the “sneakernet” era, there was virtually no way for a third party to know about a small-scale transfer of electronic information. Today, transfers of MP3s and other digital files are easily traceable. How do the younger generations that are in the vanguard of the culture that has taken shape around digitization feel about this development? At an American Bar Association program last Wednesday, entitled, “The Politics of Copyright,” ALA Office for Information Technology Policy (OITP) Consultant Jonathan Band suggested that our Copyright Act may be experiencing a “crisis of credibility” among young Americans. The men and women of this country who are in their twenties and younger grew up with digital technology. To many of these individuals, the litigious environment surrounding file-sharing is vexing, as are recent court rulings against the application of the “first-sale doctrine” to transactions taking place in the digital realm.
Here at the American Library Association, we feel it is very important to promote public understanding of the Copyright Act. However, many young Americans grow increasingly disillusioned as they familiarize themselves with copyright law and jurisprudence. In light of this trend, we must consider reforming our copyright law so that it better addresses the unique issues surrounding the movement of digital content. This means reexamining policy changes that the American Library Association has long supported. Let’s talk about shortening copyright terms, introducing new formalities regimes and reducing statutory damages. Admittedly, achieving any one of these goals is a formidable task, given current domestic political realities and international legal frameworks. However, if our discussions yielded even marginal progress, we would improve attitudes toward copyright not just among young people, but among all people who believe in the importance of promoting public access to information.