The Copyright Act: Does It Still Work?
The Copyright Act has been unprepared for the expansion of the internet. In a setting where things can be recreated, adjusted, mashed up, and distributed, we have not quite figured out the dynamics. While case law is still advancing, there are obvious issues. What are these issues? What are the common pitfalls? Should we push for an update to the Copyright Act?
The first problem in current copyright law has less to do with the law itself, and more with a lag within the court system when it comes to technological advances. Copyright cases are generally heard in federal courts. As such, the judge's age may have an important effect. Unless a judge is well-versed in the up-and-coming technologies, certain arguments may be harder to understand. For example, a business owner may try explaining an online service that allows a person to send a file towards a friend. Even if the service fully deletes the file on the initial computer sending, akin to a transfer permitted under the First Sale Doctrine, the judge may deem the transfer improper due to the reproduction of the file that would naturally occur during the transfer. Furthermore, it is important to remember that federal judges do not specialize in copyright laws and can make errors in their decisions. While there has been legislation to provide an alternative dispute resolution process more tailored towards copyright issues, but it still does not fix the problem with the current judicial system.
This is not to say that these judges or the Copyright Act cannot tackle these issues. Rather, the lack of specific guidance makes it more difficult. For example, the issue of human-specific ownership has only been tackled in part, recently, and that may change as programs used to create content may become more sophisticated. However, more likely is the ongoing confusion related to fair use, as what is and is not appropriate in culture changes. This tilts the fair-use analysis and related definitions to become more encompassing of the "remix culture."
More worrisome are the grey areas such as linking to content or "framing" which would include conduct instructing one webpage on a computer to display information from another webpage or computer, such as a video or still image. They may potentially be against the Copyright Act, but without any amendments it remains unclear.
Indeed, now the current Copyright Act has served its purpose in the digital age and should be improved with time. However, until then, it is in the hands of the courts and skilled attorneys to fill in the gaps.
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