"This article studies the rise of copy-reliant technologies - technologies such as Internet search engines and plagiarism detection software that, although they do not read, understand or enjoy copyrighted works, necessarily copy them in large quantities. This article provides a unifying theoretical framework for the legal analysis of topics that tend to be viewed discretely. Search engines, plagiarism detection software, reverse engineering and Google's nascent library cataloging effort, are each part of a broader phenomenon brought about by digitization, that of copy-reliant technologies. These technologies raise two novel, yet central, questions of copyright law. First, whether a non-expressive use that nonetheless requires copying the entirety of a copyright work should be found to infringe the exclusive rights of the copyright owner. Second, whether the transaction costs associated with copy-reliant technologies justify switching copyright's default rule that no copying may take place without permission to one in which copyright owners must affirmatively opt-out of specific uses of their works."
So - should there be automatic infringement or should copyright owners actively have to opt out? Or to put it another way should copyright owners be required to opt in before search engines, plagiarism detection, Google library, archiving or reverse engineering actors can copy their works for a variety of uses? If we look at the parallels with the vast swathes of personal data hoovered up by commercial and governmental organisations for business and surveillance purposes, then civil rights groups would tend to push for a consumer opt in rule. Whereas commerce and government prefer an opt out (or preferably no option to opt out) rule in this regard, (though to me it still beggars belief that, in a modern liberal democracy, mass surveillance of the entire population is somehow considered acceptable). Getting back to Professor Sag's copyright questions though, perhaps there should be a compensation scheme - collection schemes or societies or compulsory licensing - for this mass digital, often ultimately commercial, non expressive use of copyrighted works. Then regardless of the opt in or opt out rule, copyright holders get compensated if they grant (opt out or opt in) permission for such commercial non expressive use of their works? Professor Sag draws a more nuanced conclusion, recognising the fuzzy line between expressive and non-expressive use, in addition to noting that precedent dictates that copying which does not communicate or distribute the original expression to the public should not be considered to be copyright infringement:
"In many ways, technology is the dog on copyright’s leash. In theory, and occasionally in
practice, copyright channels the direction of technological progress; but more often,
technology simply drags the law in its wake, going where it will. The pull of recent
technological change on copyright law has been demonstrated in this Article. Copyreliant
technologies – technologies that necessarily copy expressive works in large quantities,
but do so for non-expressive purposes – are vital to the operation of the
Internet. And yet, because these technologies are so dependant on access to copyrighted
works, they are also vulnerable to claims of copyright infringement.
Recognizing the common ground shared by search engines, electronic archives,
plagiarism detection software and other copy-reliant technologies, sheds considerable
light on the application of copyright law in the Internet era. In relation to the first core
question posed by copy-reliant technology, the potential for copyright liability for the
expressive use of copyrighted works, this Article has established that acts of copying
which do not communicate the author’s original expression to the public should not be
held to constitute copyright infringement. To do so would conflict with decades of
accumulated precedent that limit the rights copyright owners to those uses of their works
that offer some threat of expressive substitution.
In spite of its centrality, the question of non-expressive use may not fully resolve all
copyright disputes involving copy-reliant technologies. While the category of nonexpressive
use is conceptually neat, it may prove messy in implementation. Inevitably,
courts will face cases where the line between expressive and non-expressive remains
ambiguous. In such cases the effect of opt-out mechanisms offered by the defendant
moves from the periphery to the center of legal analysis. Technologically enabled opt-out
mechanisms such as the Robots Exclusion Protocol play an essential role in maintaining
order on the digital frontier. Such devices are essential to overcoming the otherwise
daunting transaction costs facing copy-reliant technologies. Accordingly, to treat the
phenomenon of copy-reliant technology comprehensively requires addressing the
significance of opt-outs under copyright law.
Copyright law is fluid by design, and nowhere is that fluidity more evident than in the
development of the fair use doctrine. Even without the fair use doctrine, the mere
invocation of literary property would not settle the scope of the copyright owner’s rights
or the nature of the remedies to which she is entitled. The fair use doctrine both allows
and requires judges to consider market realities in determining the application of
copyright law in novel circumstances. To the extent that other commentators have
considered the doctrinal significance of transaction costs in relation to isolated issues
such as the Google Book project, they have largely missed the point. Judges are not state
planners; they should not attempt to use the fair use doctrine to achieve some static
allocation of uses for a given set of copyrighted works. What judges should do is apply
the fair use doctrine to fashion a set default rules which facilitate the kind of private
ordering the copyright has traditionally embraced. In the high transaction costs
environment of copy-reliant technologies, this may well mean finding in favor of the user
who provides copyright owners with the choice to opt-out."
There genuinely is a lot of life in modern copyright scholarship. What I find depressing is that little of it finds its way into policy making.