Code Versus the Common Law

The explosion of peer-to-peer file sharing has forced a reexamination of the essential structure of copyright law in the United States. In a digital, interconnected world, the dispersion of copying and distribution activities makes it more difficult for copyright holders to identify users who derive value from their works. And at least theoretically, the inability to capture such value could ultimately jeopardize the incentive to produce and distribute creative expression. There is widespread disagreement over what, if anything, should be done about these threats. While suggestions range from copyright abandonment to digital lockup, two of the principal proposals share an important common feature: each would replace our current law, which centers on copyright owners and those who actually use their works, with one that sweeps a much broader array of characters into the legal arena. Under the first proposal, the current market-based approach to intellectual property licensing would give way to a government-imposed levy on a wide range of technology services. Under the second scheme, reflected in bills such as the failed Consumer Broadband & Digital Television Promotion Act, an assortment of related industries would share responsibility for protecting against infringement of publishers\u27 copyrights. This article critically evaluates a core assumption that underlies these schemes: that the challenges posed by file sharing either cannot, or should not, be addressed through application or tweaking of the common law of copyright. Before shifting from the current acts-based, individualized scheme to one that falls back on neutral technology as either a tax base or an enforcer, we should have confidence that the current system does not work and cannot be fixed