The Ever-Whirling Cycle of Change: Copyright and Cyberspace

June 16, 2012

From the American Revolution to the present day, change has been a salient factor of the American psyche. Americans have confronted, and indeed embraced, change. Alexis de Tocqueville suggested almost a century and a half ago that Americans are constantly modifying or abrogating their laws, but they “by no means display revolutionary passions.” The Framers wrote into constitutions procedures for their amendment, and the constitutional grant of authority to legislative bodies, including the United States Congress, invited elected representatives to face new problems and to adapt to changing societal conditions. The judicial branch was given authority to resolve cases and controversies and to construe statutes and later claimed judicial supremacy over the constitutionality of statutes. Although our society has been marked by violence in specific sectors (most notably race relations, crime, labor management relations, and, most recently, terrorism), Americans pay homage to peaceful order. “Desirable stability [is] seen as involving opportunity for orderly change.”
Few areas of law reflect change more dramatically than copyright law, which mirrors transformations in American society. The shifting patterns in the fabric of copyright law are a systematic response to new threads of creative expression, technologies of reproduction and distribution, and receptions of copyrighted works by the public. The law contains provisions to accommodate maps, charts, books, photographs, piano rolls, broadcast radio and television, cable and satellite retransmissions, musical works and sound recordings, architecture, the visual arts, computer software, semiconductor chips, digital audio recording technology, and the Internet. Although many changes are legislated based on what elected officials believe to be in the best interests of the nation, other refinements are constructed through judicial decision-making and the common law. The fabric has stood the test of time, but is frayed in certain places.