Copyright and Copy-Reliant Technology

INTRODUCTION. 1607 I. COPY-RELIANT TECHNOLOGIES AND THE INTERNET 1610 A. New Technologies, Copyright Markets, and Copyright Law 1611 B. Four Case Studies of Copy-Reliant Technology 1616 II. THE DOCTRINAL IMPLICATIONS OF NONEXPRESSIVE USE 1624 A. The Principle of Nonexpressive Use 1624 B. Doctrinal Incorporation of Nonexpressive Use 1639 C. Fair Use and Nonexpressive Use 1645 III. THE DOCTRINAL SIGNIFICANCE OF TRANSACTION COSTS 1657 A. Transaction Costs and Copy-Reliant Technologies 1657 B. Transaction Costs and Property Rights 1668 C. The Significance ofOpt-Outs in Fair Use Analysis. 1675 CONCLUSION 1681 INTRODUCTION Although we have been living in the Internet age for more than a decade now, its implications for copyright law and the fair use doctrine have only just begun to manifest.1 By expanding the breadth, diversity and sheer number of copyrighted works in existence, the Internet has fundamentally changed the nature of copyright markets. This transformation is most significant in the context of what I term "copy-reliant technologies" - technologies that copy expressive works for nonexpressive ends. Copyreliant technologies, such as Internet search engines and plagiarism detection software, do not read, understand, or enjoy copyrighted works, nor do they deliver these works directly to the public. They do, however, necessarily copy them in order to process them as grist for the mill, raw materials that feed various algorithms and indices. Other scholars have considered separately the copyright implications of Internet search engines, plagiarism detection software, reverse engineering of software, and the recently settled Google Book Project controversy.2 This Article attempts to provide a unifying theoretical framework for these issues, recognizing them as subparts of a broader phenomenon: the emergence of copy-reliant technology. Copy-reliant technologies tend to interact with copyrighted works by copying them routinely, automatically, and indiscriminately. These technologies are vital to the operation of the Internet, but they are vulnerable to claims of copyright infringement at key stages of their operation. Copyreliant technologies typically display three significant traits: (1) the copying of expressive works for nonexpressive uses, (2) a high volume of transactions, and (3) the use of technologically enabled opt-out mechanisms to reduce transaction costs. The business models that employ these technologies often inherently require these traits. The rise of copy-reliant technologies exposes seemingly novel questions. First, should a nonexpressive use, which nonetheless requires copying the entirety of a copyrighted work, be found to infringe the exclusive rights of the copyright owner? Our historical intuition is that works are copied to communicate at least some part of the work's original expression: books are copied to be read, not to serve as paperweights; and compact discs are copied to be played, not to function as drink coasters. This Article concludes that because expressive communication to the public implicitly defines and limits the extent of the copyright owner's exclusive rights, acts of copying that do not communicate the author's original expression to the public do not generally constitute copyright infringement. …