Before the printing press, camera, and fast copy machines there was no such thing as a copyright. Then once a printed or photographed product was copyrighted, people, companies and industries began to protect their printed or photographed intellectual property via copyright protection in a court of law.
For example, Jack Valenti, the late former head of the Motion Picture Association of America, said "The VCR is to the American film producer, as the Boston Strangler is to the woman home alone." This is a favorite laugh line for copyright's skeptics who still invoke him frequently, often because of a notoriously foolish statement he made before Congress in 1982.
"In a world of bits," says Charles Nesson, a Harvard Law School professor and co-founder of the Berkman Center for Internet and Society at Harvard Law School, "copyright is a contaminant of a great many of them."
This isn't the way copyright law used to be taught.
"Think of cyberspace," Nesson continues, and "imagine the issue of freedom in that space -- your ability to use the bits without fear of litigation." Three kinds of bits fill this space, he explains. The first are "totally free" in that "you can use them without fear." The second are clearly copyrighted, he says, and you can buy the right to use those at, say, Amazon (AMZN) or iTunes. "Then there's a contaminated, mid-bunch of bits," he continues. "You can't be sure you can use them for free, but you also can't figure out how to use them with any clear-cut permission. That's contamination rendering a whole part of the cyberworld out of bounds for free people."
For traditional copyright lawyers, the transformation of copyright law in the public's perception -- from noble curator of the springs of creativity to, as in professor Nesson's view, a "contaminant" that vexes the lives of free people -- has been dizzying.
By enabling the nearly costless distribution of perfect copies of music, books, and movies, digital technologies intensified a behavioral enigma that always lay at the heart of copyright law. These works are what economists call public goods. Once someone publicly sings a song, it's impossible to keep others from singing it, and the fact that they will won't prevent the songwriter from continuing to sing his song. Thomas Jefferson famously captured these intoxicating facets of public goods more memorably than anyone else: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."
The problem, which the framers of the Constitution recognized, was that if no one could own songs at all, there would be less incentive to create them. Accordingly, "to promote the progress of science" they gave Congress the power to secure "for limited times to authors ... the exclusive right to their ... writings."
In the 1970s and 1980s many people who went into the field of copyright thought of themselves as fighting to help authors, musicians, and artists -- and therefore as being on the side of the angels.
By the 1990s, however, many who entered the field came from tech backgrounds and saw copyright as a constraint to progress. New technologies would benefit copyright holders once they adapted to them, these voices argued, but the entertainment industry was irrationally clinging to outdated business models -- which copyright law doesn't protect.
Source: Roger Parloff, senior editor, FORTUNE, July 23, 2012