Ginsburg, Jane C. “Copyright and Control over New Technology of Dissemination.” Columbia Law Review 101 (2001): 1613- 1647.

Ginsburg discusses the implications of new technology and copyright law, mainly outlining her argument in three parts. She contends that the relationship between copyright and culture is nuanced as the shift of balance and control is consistently in flux. She focuses on control under copyright (and in this aspect, among other examples cites court rulings either in or out of favor for copyright owners) as well as discussing the availability of new technology. She discovers a pattern that is important to understanding the relationship between copyright and culture. Her main contention is that when copyright owners want to eliminate a new type of mass distribution by means of technology courts rule out of favor of copyright owners. Contrastingly when owners want to participate in the new dissemination courts lean towards more copyright control. This article serves as one case study in helping us understand this relationship between Copyright and Culture by specifically pointing to previous court decisions and laws passed as well to new technology and its influence. This article reveals an irony of thought when it comes to the courts and that original intentions when it comes to copyright owners somehow have worked in their favor.

 

 

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This article deals with copyright legislation and jurisprudence in terms of the various forms and degrees of control apportioned to copyright owners and producers and distributors of technologies used to disseminate copyrighted works. It analyzes the rulings of several court cases tracing the evolution of current copyright practices regarding distribution technologies beginning with the Betamax case and ending with Napster. The author describes each case in terms of a struggle for control over the distribution of works of authorship between copyright owners and producers of technologies of dissemination. She concedes that the trend in digital media copyright protection has been to grant copyright owners control over new distribution outlets because unauthorized distribution often results in the producers of the dissemination technology profiting from the exploitation of a new market to which the copyright holder is entitled. She acknowledges, however, that it is not socially optimal for copyright owners to retain complete control over the technologies of dissemination because their first instinct in litigation is to prevent the use of the new technology. Therefore, with most technologies of dissemination of copyright protected works, courts allow the sale of new technologies because it is in the interest of society and of economic value for new markets for the dissemination of works of authorship to be created, but they require the proprietors of such technologies to obtain licenses from copyright owners to distribute copyrighted works.

Since my paper deals with digital media copyright regarding peer to peer file sharing networks I am most interested in the author's analysis of internet technologies. The author explains that the battle between digital media copyright owners (primarily record companies) and producers and distributors of new technologies that disseminate works of authorship on digital networks has led congress to anticipate new forms of exploitation and grant more control to owners of copyrights to facilitate the use of digital networks. She adds, however, that there are many academics who believe that despite any policing efforts by congress and the courts, new technologies will constantly arise to take the place of those that submit to copyright compliance. Further complicating the matter, she introduces a set of "self-styled copyright anarchists" who are determined to continue illicit file sharing activities that evade protective measures supported by copyright legislation. Finally, she considers plans proposed by German and Canadian legislators to impose a surcharge on internet service costs to compensate copyright owners for the inevitable dissemination of their works over the internet. She concedes, however, that this is likely unfeasible since such a surcharge would have to be negotiated among all recording studios and would probably be prohibitively expensive.