The right “to reproduce the copyrighted work” [as granted by § 106 of the US Copyright Law] is commonly termed the fundamental copyright right. The control over the making of copies is, after all, why this species of intellectual property is called copyright. (Jessica Litman’s Digital Copyright, p. 176)
Litman followed up on these lines from her book by making a cogent and persuasive argument that this near-total focus on the right to make copies is misplaced. As this post will make clear, I agree with her, for the reasons that she gives, as well as what I’m about to try to articulate now.
I think the focus on the reproduction right have led copyright holders to press the claim that their right has been infringed in uncountably many lawsuits and legislative lobbying efforts to the detriment of the recognition of a simple fact: consumers don’t buy a copy of a work, they buy a use. While it is the case that in order to use copyrighted material, one has to lay one’s hands (eyes, ears?) on a copy of a work, it is also the — much ignored — case that one obtains the copy not for its own sake but for a particular use. One buys a book (or check it out from the library) in order to read it, to find a citation, or to conspicuously place it on one’s coffee table to broadcast one’s intellectual prowess. Whatever the reason, the person is not interested in the copy per se; rather, he is using the copy of the materials as a means to reach his goal (of reading, learning, or whatever).
When copyright holders ignore this reality and instead concentrate their considerable energies on protecting the reproduction of their works, they risk missing market opportunities for their products. They risk being blindsided to why consumers buy their goods, and once they lose track of the motivation for why people want their products, they miss out on the opportunities to make and market the products that their users want and will pay them money for.
To illustrate, consider the Sony Corp. of America v. Universal City Studios, Inc. case. Movie and television executives in this instance focused on the fact that the Betamax allowed users to record shows transmitted over the air. As recording is copying — the ultimate sin — the executives fought the Betamax tooth and nail. They spent vast sums of money to both litigate their lawsuit and lobby Congress to pass copyright laws amenable to their interests. While so focused, they missed out on the fact that consumers didn’t want to make copies of shows for the sake of making copies; instead, they want to watch something of their own choosing at a time of their choice. When the media companies finally came around to this view, they seized the market opportunity to satisfy this demand by supplying the American public with prerecorded video tapes. They made buck loads of money. Happy endings for everybody*.
And that’s the kind of ending we, as users and producers of copyrighted materials, want. It’s the kind of ending we’re more likely to get if publishers, recording labels, and movie studios shift their incredible intellect, creativity, and deep pockets to providing consumers with the convenience and ubiquity in access they want, e.g. cloud music storage and retrieval, e-books that can be accessed in different platforms, movies that stream online, and pricing such use correctly instead of expending their energies on limiting consumers’ use because a copy must be made in each instance.
*The studios still fought video rentals tooth & nail, but that’s a story best told another time, perhaps by somebody like James Lardner.