Information Wars and the Challenges of Content Protection in Digital Contexts

Information Wars and the Challenges of Content Protection in Digital Contexts

Raymond T. Nimmer · 13 Vand. J. Ent. & Tech. 825

Abstract

We are in the midst of a fundamental conflict in law and policy between those who favor maintaining and expanding copyright and related rights in the digital context (“rights enhancers”), and those who favor letting rights atrophy (“rights restrictors”). This Article argues that strong intellectual property rights are essential. At minimum, they are important to support creativity in contexts where the creation, collection, or distribution of the content requires substantial investment of time and resources. The case for allowing creators’ rights to weaken is both untested and structurally suspect. Copyright law must construct a balance that fully supports creative activity of high-quality and high-investment works. An aggressive weak rights position fails to do that.

While copyright law in the United States is often associated with providing incentives to create and distribute works, its substantive content also plays an important role in setting social norms about whether copying the work of another is appropriate. A weak rights regime poorly serves this function—at least if we believe that creative authors should have some control over use of their works.

As to incentives, reduced rights are conducive to supporting low (or no) cost works that often borrow heavily from the works of others. Strong rights are conducive to works that require significant investments or a need to recoup the investment of time or resources. In addition, weak rights on the Internet shift value from all content creators to corporate aggregators or search engines, not simply to end users. But a legal system that undermines the incentive to produce and distribute higher-cost content weakens the entire structure of the information society.

The policy conflict and the digital context makes copyright an unstable means of protecting distributed informational works. Information providers have turned to other laws to enhance commercialization of their works and these alternatives are and should be supported in law. This Article discusses two: contractual licenses and access controls under the DMCA. As to both, many rights restrictors argue that contracts or technology should not be permitted to alter the weak rights balance they believe should apply under copyright law. Courts properly reject these arguments—and rightly so.