'Copyright's Highway: From the Printing Press to the Cloud'

By Paul Goldstein,

Stanford University Press, 2d. Ed. 2019, 256 pages, $24

Book reviewers don't usually look forward to reading the second edition of a book. Particularly when the author is a legal academic. Given the pressures of publishing and academe, second editions are likely retreads. Prof. Paul Goldstein's Copyright's Highway is a rare exception as the breathless back-cover blurbs from Scott Turow, Jonathan Zittrain, Marshall Leaffer and Jane Ginsburg attest. Goldstein is an internationally-recognized professor at Stanford Law School, and wrote treatises on copyright law and international copyright law. The original edition of Copyright's Highway came out in 1994 titled Copyright's Highway: From Gutenberg to the Celestial Jukebox. Goldstein imagined a future “celestial jukebox” where copyright consumers could select content at will from a delivery system yet to be invented.

A lot has changed since 1994. Since 1994 the role of copyright in each of our lives has changed dramatically. In 1994 publishers were a small club. In 1994 our copyright system had not yet fully felt the impact of the United States' accession to the Berne Convention which greatly expanded copyright's protections for authors who now enjoyed copyright protections for creative materials—whether the authors sought such protections or not. In 1994 the Internet was in its infancy. In 1998 Congress extended the terms of existing copyrighted works and froze the public domain for a 20-year period to end in 2019. These legal and technological developments conspired to catapult copyright law into the center of our lives. Children are now worldwide publishers—whether parents like it or not.

Legal scholars today complain about a locked-down, permission-based culture. How we interact, how we write, what we photograph, where our “content” is stored, who owns it, has all changed dramatically in the last 25 years. But where next? Copyright's Highway promises a roadmap: “This book is about copyright: about the world of information and entertainment it sustains; about the new technologies that, along with the old and in harmony with the creative spirit, promise to alter this environment drastically; and about the decisions that will have to be made in the United States and around the world if creativity is to continue to flourish.“

Goldstein has a track record of good predictions. For example, in 1995 “the Clinton Administration's White Paper gave a name, the 'celestial jukebox' to this incipient entertainment and information utility, it proposed the adoption not only of anti-circumvention measures but also of rules for managing copyright information so that users could determine the identity of a work's author and owner and whether that individual or company was willing to allow use of the work.” Thus, the “celestial jukebox” in the title of the original edition of Copyright's Highway was borrowed by the Clinton Administration and influenced the quarter-century of technological and legal changes that followed.

In Copyright's Highway's new edition, the “celestial jukebox” is replaced by the cloud. To get to the cloud, Copyright's Highway starts at the beginning, untangling copyright from other types of intellectual property for the general reader. We learn that copyright's “underlying physics” are unstable. Where other American laws are driven by a single, widely-shared purpose, copyright's foundations are split by a fierce debate. On one side, Goldstein sees lawyers asserting copyright roots in natural justice, entitling authors to every last penny that other people will pay to obtain copies of their works. “These are the copyright optimists: they view copyright's cup of entitlement as always half full, only waiting to be filled still further.” On the other side are copyright pessimists, always viewing copyright's cup as half empty: accepting that copyright owners should get some incentive to produce creative works, but viewing anything beyond the necessary incentive as an encroachment on the general freedom of everyone to write and say what they please.

The battles between optimists and pessimists Goldstein details for us are far from theoretical. For example, in the past decades, the United States has transformed “from pirate to prince” in its battles with the international community over copyright royalties. European views of copyright as an author's “moral right” (cup half full) versus U.S. traditional copyright pessimism grounded in a utilitarian view of copyright have been recently turned upside down as the U.S. seeks to increase its share of copyright royalties and battle piracy worldwide. Persuading the world to respect copyright law and combat piracy has taken on an increasingly important foreign policy role. Goldstein is not sure that copyright will emerge from these battles with its virtue intact: “The recent introduction of copyright into the international trade bazaar, where intellectual property rights can be traded for subsidies for rice or grapeseed oil, promises to complicate both domestic and international copyright and possibly to diminish the power of their competing symbols.”

Copyright's Highway is peppered with enjoyable, lively personal stories behind famous cases that have shaped copyright law. We meet John Passano, President of Williams & Wilkins, a medical publishing company taking on the U.S. government's National Library of Medicine for operating large numbers of Xerox machine copying tens of thousands of his articles without payment or permission. Passano's quixotic quest to gain compensation of two cents per page ended up at the U.S. Supreme Court. Passano lost 4-3 at the U.S. Court of Claims due to an inability to show damages, one dissenter calling it the “Dred Scott decision of copyright law.” Tired of going it alone, Passano theatrically announced that he would not proceed further. Understanding the massive stakes for the publishing industry of losing all control over library photocopying, the Association of American Publishers collected $110,000 to help Passano finance a Supreme Court challenge. In 1975 the U.S. Supreme Court split 4-4 after Justice Harry Blackmun recused himself, affirming Passano's loss. Passano noted 15 years later: “Little did I realize at the time that this was all going to have its effect on television and motion pictures and VCR's, and the whole gamut of things which are affected by copyright law, which of course weren't even thought of when we made our move. We were dealing with a fairly simply operation—Xerox. Now it's become horribly complicated.”

Goldstein's narrative highlights the historical compromises behind these complexities of copyright law. Despite his misgivings, Goldstein remains cautiously optimistic, insisting that the “pragmatic lesson of history is simply that the copyright system works, even if only by the modest measure that, over time, copyright has never obstructed society's access to an ever-widening array of creative products at ever-decreasing costs.” But problems requiring legislative action loom large. The final chapters “Fraying at Both Ends” and “Competing With Free” highlight the problems and inefficiencies caused by software being covered by copyright, by copyright term extension and by new technology.

Goldstein offers two legislative prescriptions. First, he argues that Congress needs to “resist the temptation to extend copyright by default simply because it is intellectual property law's most capacious doctrine.” Second, “as new technological uses of copyrighted works emerge, lawmakers should be quick to extend copyright to encompass these uses, even those that occur in private places, so long as no insuperable enforcement costs stand in the way. As shown by congressional ambivalence over private uses, rights delayed are usually rights denied.”

Scott Fitzgerald was a skeptic of second acts in American lives. If you care about the future of innovation, creativity, technology, free speech and privacy and are going to read one book on copyright, give the second version of Copyright's Highway a shot. It captures the human drama of battles past, gives a sense of our present, and provides a glimpse into the future.

Raymond J. Dowd is a partner in Dunnington Bartholow & Miller, author of 'Copyright Litigation Handbook' (Thomson Reuters West 2018-2019) and adjunct professor at Fordham University School of Law.