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How Copyright Broke 
 
(Originally published in Locus Magazine, September, 2006)  
 
The theory is that if the Internet can\'t be controlled, then copyright is dead. The thing is, the Internet is a machine for copying things cheaply, quickly, and with as little control as possible, while copyright is the right to control who gets to make copies, so these two abstractions seem destined for a fatal collision, right? 
 
Wrong. 
 
The idea that copyright confers the exclusive right to control copying, performance, adaptation, and general use of a creative work is a polite fiction that has been mostly harmless throughout its brief history, but which has been laid bare by the Internet, and the disjoint is showing. 
 
Theoretically, if I sell you a copy of one of my novels, I\'m conferring upon you a property interest in a lump of atoms -- the pages of the book -- as well as a license to make some reasonable use of the ethereal ideas embedded upon the page, the copyrighted work. 
 
Copyright started with a dispute between Scottish and English publishers, and the first copyright law, 1709\'s Statute of Anne, conferred the exclusive right to publish new editions of a book on the copyright holder. It was a fair competition statute, and it was silent on the rights that the copyright holder had in respect of his customers: the readers. Publishers got a legal tool to fight their competitors, a legal tool that made a distinction between the corpus -- a physical book -- and the spirit -- the novel writ on its pages. But this legal nicety was not \"customer-facing.\" As far as a reader was concerned, once she bought a book, she got the same rights to it as she got to any other physical object, like a potato or a shovel. Of course, the reader couldn\'t print a new edition, but this had as much to do with the realities of technology as it did with the law. Printing presses were rare and expensive: telling a 17th-century reader that he wasn\'t allowed to print a new edition of a book you sold him was about as meaningful as telling him he wasn\'t allowed to have it laser-etched on the surface of the moon. Publishing books wasn\'t something readers did. 
 
Indeed, until the photocopier came along, it was practically impossible for a member of the audience to infringe copyright in a way that would rise to legal notice. Copyright was like a tank-mine, designed only to go off when a publisher or record company or radio station rolled over it. We civilians couldn\'t infringe copyright (many thanks to Jamie Boyle for this useful analogy). 
 
It wasn\'t the same for commercial users of copyrighted works. For the most part, a radio station that played a record was expected to secure permission to do so (though this permission usually comes in the form of a government-sanctioned blanket license that cuts through all the expense of negotiating in favor of a single monthly payment that covers all radio play). If you shot a movie, you were expected to get permission for the music you put in it. Critically, there are many uses that commercial users never paid for. Most workplaces don\'t pay for the music their employees enjoy while they work. An ad agency that produces a demo reel of recent commercials to use as part of a creative briefing to a designer doesn\'t pay for this extremely commercial use. A film company whose set-designer clips and copies from magazines and movies to produce a \"mood book\" never secures permission nor offers compensation for these uses. 
 
Theoretically, the contours of what you may and may not do without permission are covered under a legal doctrine called \"fair use,\" which sets out the factors a judge can use to weigh the question of whether an infringement should be punished. While fair use is a vital part of the way that works get made and used, it\'s very rare for an unauthorized use to get adjudicated on this basis. 
 
No, the realpolitik of unauthorized use is that users 
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