The problem with how the U.S. legal system responded to digital technology

"Promoting Diverse Cultural Expression: Lessons from the U.S. Copyright Wars"
Raymond Shih Ray Ku

This article provides a concise and non-technical explanation of the problem (or misunderstanding) the general public (including creators themselves!) has with regard to the current debate over the copyright legal system's response to new digital technologies and the internet. For most of copyright's history, the interests of creators and distributors were considered to be the same and were generally aligned with those of the public or audience. Ku asks, 'whose interests does copyright law protect in today's day and age?' As a result of new technologies, it is critical that the copyright system no longer couple the interests of creators and distributors because their interest are frequently different. Ku supports the notion that today's copyright system is structured to protect the interests of yesterday's distributors.

"[I]f adequate financial incentives or market conditions exist to inspire the creative acitivity of authors and encourage them to make their works available to the public without copyright, copyright protection should not be recognized." [pg 6-FN 40]

"Today, the economics of digital technology renders copyright both unnecessary and inefficient. In general, discussions about the optimal level of copyright protection ignore distinctions between the incentives from creation and distribution. In part, the bundling of these interests was strategic. Distributors found that it was to their political advantage to have their interests treated as inseperable from the interest of creators. In addition to the rhetorical power of equating the interests of distributors with creators, until now the bundling of interests was acceptable because the cost of producing the vessels --CD's, books, DVD's-- for content, and distributing those vessels, was an essential component of making content available to the public. As a result, both sets of costs had to be considered if the public was to enjoy and have access to the products of human creativity. However, as the following demonstrates, because the Internet and digital technology have revolutionized the ways in which we disseminate information, it is no longer appropriate to treat these interests as interchangeable. Once they are unbundled, it becomes clear that copyright protection cannot be justified as a means of ensuring distribution and is an impermissibly inefficient means for ensuring creation." [pg 6]

Ku makes his argument by using the music industry as an example of how the interest of creators and distributors are deceptively coupled, but in reality, they are no longer aligned. He makes his case by comparing the change in income for artists from CD sales vs. live performances since the introduction of the internet and the advancement in digital technologies.