Copyright 1992-2012: The Most Significant Development?

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have presented significant challenges to every one of the exclusive rights that § 106 of the Copyright Act grants to authors. Part I will summarize those challenges, as well as the addition of a new § 106 right, and of new “paracopyright” rights regarding technological protection measures and copyright management information. Digital media have also considerably broadened thescope of fair use and have prompted the introduction of commercially significant immunities for intermediary service providers. Part II will address the expansion of copyright defenses and immunities and will suggest that, contrary to the popular depiction of overreaching copyright rights and remedies, the courts have re-balanced copyright to weight toward users. Finally, turning from digital media, I will offer a less obvious response, one that I hope evokes the core of copyright law, past, present and future