Monday, April 16, 2007
Alfano on Copyright and the history of the meaning of "to copy"
Posted by Mary L. Dudziak
Kenneth M. Alfano has posted an article that appeared recently in the Journal of Technology Law & Policy, Copyright in Exile: Restoring the Original Parameters of Exclusive Reproduction. He lists no current affiliation or contact information on SSRN, unfortunately. Here's the abstract: What does it mean to copy? Modern case law too often bypasses this question, summarily deeming copies to exist wherever creative content is reused in any way, thereby imparting a broad content-activity right devoid of statutory support. While considerable debate surrounds the various defenses and exceptions to copyright protection, less attention has been paid to assessing what copyright actually covers in the first place. The affirmative scope of the reproduction right warrants careful scrutiny; it hinges upon the construction of the language Congress has employed over the years to ordain, perpetuate, and qualify it. Almost a century ago, the U.S. Supreme Court crystallized a highly constrained definition of “copying.” Early senses of the term (in copyright contexts) referred only to reconstructing an author's physical creation so as to serve a similar purpose. Although this understanding informed each subsequent codification - as Congress opted to work around this construed meaning rather than tinker with it - courts proceeded to depart dramatically from this conception. No legislation has actually redefined it, and no legislative record even indicates any intent to that effect, yet precedent increasingly finds any activity involving protected expression to presumptively implicate the reproduction right. Contemporary case law neglects the traditional, exacting standard - whether through faulty historical analyses, efforts to modernize arguably dated policies, or both. In this Article, I analyze the history and codifications of the exclusive reproduction right, urging a more narrow and concrete definition predicated on the original understanding of “copy.” Applying statutory originalism to Congressional grants of intellectual property, I submit that any legitimate modification to the copyright bargain must come affirmatively from the legislative branch.