These expansions were reasonable enough, each the product of a self-conscious legislative change. But early in the 20th century, the law became latched to a device that would produce unimagined changes in copyright’s reach. For in 1909, through a mistake in codification (literally: it was an error in the wording used in the statute), the exclusive right that copyright protected was defined to be not only the right to “publish” or “republish” but the right to “copy.” That change didn’t matter much in 1909: the machines for making copies were still printing presses, and no one believed a schoolchild writing out a poem 50 times so as to memorize it was committing a federal offense. But as the machines that copied became more and more common, the reach of copyright law became more and more extensive. At first it was commercial machines that bore the burden of the law: player pianos, radio, cable TV. But in the 1970s, and for the first time, a printing press to which the common folk had access – the “copier” – became the target of extensive litigation.
These expansions in the law were balanced by important, built-in limitations on copyright. “Fair use” is one important limitation. But the most important was the product of a formality. To get the benefit of copyright protection, an author had to “opt in” to the copyright system: a work had to be registered; after an initial term, the registration had to be renewed; and the work had to be marked (©). No more than 50 percent of work published in the 19th century was registered. More than 80 percent of that registered work was never renewed. Copyright law thus automatically narrowed its reach to work presumptively needing the protection of copyright. It left much published work (and the overwhelming majority after an initial term) free.
This opt-in system was changed, however, in a series of amendments to American copyright law beginning in 1976. After these changes, creative work was automatically protected by a federal copyright, whether or not the work was registered, without any need to renew the copyright, and whether or not the work was marked with a funny little ©.
Copyright law had always been conditional. It was now unconditional. It had always automatically narrowed its reach to work presumptively needing the benefit of copyright protection. It now reached all work, regardless of whether it needed any copyright protection. There was no evil conspiracy behind this change. Its purpose was perfectly benign: to simplify copyright law. The formalities of the old system were a bother. Abolishing them would remove that bother. But the consequences of abolishing these formalities were dramatic: we moved from regulating a minority of creative work to regulating all of it. Call this copyright’s “first big change.”
The second change is even more dramatic. To see the point, notice first how little the law of copyright regulates ordinary uses of creative work. Reading a book, for example, is not a regulated (by copyright law) use of the book. It’s a free use: reading a book creates no copy. To lend someone a book is not a regulated use: it creates no copy. And to sell someone a book is not a regulated use: it creates no copy. These ordinary uses are beyond the reach of copyright law. Or put differently, copyright law leaves these ordinary uses immune from regulation.
But in the digital world, this immunity disappears. It is the nature of digital technologies that every use produces a copy. Thus, it is the nature of a copyright regime like the United States’, designed to regulate copies, that every use in the digital world produces a copyright question: Has this use been licensed? Is it permitted? And if not permitted, is it “fair”? Thus, reading a book in analog space may be an unregulated act. But reading an e-book is a licensed act, because reading an e-book produces a copy. Lending a book in analog space is an unregulated act. But lending an e-book is presumptively regulated. Selling a book in analog space is an unregulated act. Selling an e-book is not. In all these cases, and many more, ordinary uses that were once beyond the reach of the law now plainly fall within the scope of copyright regulation. The default in the analog world was freedom; the default in the digital world is regulation. Call this copyright’s “second big change.”
When you tie these two big changes of copyright together, you get a “truly profound change.” Not only is the reach of the law dramatically larger because copyright now regulates all rather than a minority of work, but the effective scope of the law is dramatically larger because copyright regulates all uses rather than just some. The U.S. Congress self-consciously made one of these two big changes, but it didn’t know how far-reaching its legislation would be, since it couldn’t foresee the eventual universality of machines that copy.