MODERN TECHNOLOGY, LEAKY COPYRIGHTS, AND CLAIMS OF HARM: INSIGHTS FROM THE CURIOUS HISTORY OF PHOTOCOPYING

I. INTRODUCTION This is a story about leaky copyrights and the pros and cons of decid- ing, as a matter of policy, that all such leaks must be stemmed to maintain the integrity of the copyright system. Until about fifty years ago, the only kinds of leaks that had salience were commercial in nature; these were occasioned by competitors who copied protected works, and then at- tempted to sell them to the public in competition with the copyright holder. Although, occasionally, arguments would arise over whether cop- ying had actually occurred, and if so, whether the use was nonetheless “fair,” there was very little controversy over the need to caulk leaks by stopping proven infringers. But, with the advent of technologies that al- lowed individuals to make copies — not to sell, but for their own use or for the use of small groups (such as school classes) — for the first time noncommercial leaks became a subject of controversy. Were personal and noncommercial copying things copyright permitted or forbade? The labor-intensive practices of note-taking and hand-copying were acknowledged to exist but no definitive resolution regarding their legiti- macy or lack thereof was reached. The copyright-owning community was on record as regarding these kinds of noncommercial copying not as of- right uses but permissible only as a matter of industry custom.1