Innovative Deviance: A Theoretical Framework Emerging at the Intersection of Copyright Law and Technological Change

This paper explores the relationship between emerging technology-enabled behaviors and established copyright law in the United States. Challenges implicated by recent technological developments have given rise to a consensus among policy-makers, scholars, public interest advocates, and various other stakeholders that copyright reforms are needed. Debates over what shape the potential reforms ought to take have been strident, unrelenting, and seemingly paralyzing to the cause. Meanwhile, courts have continued to adjudicate cases testing the balance between existing copyright doctrines and new methods of creating, managing, and sharing protected works. The paper describes a recent exemplar involving mass digitization, Authors Guild v. HathiTrust, and critically reflects upon the courts’ fair use analyses before articulating an emerging theoretical framework for understanding and explaining the intersection of copyright law and technological change based on the sociological concept of innovative deviance