Plenty has been written on how the existing notion of copyright is unsuitable for the Internet era. The Digital Millennium Copyright Act (DMCA) has proved inadequate for the demands of a world where technology is constantly evolving. In 1998 when the DMCA became law who could have imagined something called YouTube or that data storage would become so inexpensive that Google Print for Libraries would come along.
The recording, entertainment and publishing industries have always fought to stop the march of these two new technologies. Early in this decade we saw the endless rounds of litigation with peer to peer technology companies — Napster, Kaaza, Limewire and others — that allowed users to swap pirated music. The recording industry may have managed to shut down some P2P companies but the technology still flourishes and CD sales have been severely dented. Then, through Apple they managed to license the music and protect some of their revenue only to end up ceding vast amounts of control to Apple. The lesson learned: fighting the march of new technology can at best be a short term solution.
More recently, over the past year or so, a more interesting battle is brewing between the old guard and new technologies. YouTube and Google Print for Libraries have pitted the entertainment and publishing industries against new technologies. But this time there is one crucial difference. Google, the defendant in both cases, is a formidable rival. This is very different from small peer-to-peer companies that were shut down in the past. Google is a search-engine titan, with vast amounts of money behind it in its battle against the old guard.
The battle, in both cases, is for control. Both industries realize that the Internet as a favored distribution medium is a reality. No industry wants to give companies like Google the upper hand. Someone working for a large book publisher recently told me that all they want to do is avoid the same fate as the music industry. Read in between the lines — and that means that some compromise will definitely be reached.
But more important for me is that this battle could well shape the manner in which copyright law is interpreted in the digital era. Will the courts adapt the law to reflect the reality of the Internet era? Or will they adopt a more restrictive notion of copyright — one that stifles the free flow of information and stifles creativity? I hope it’s the former.