When we use the Internet, we know that copyright law limits our freedom. We know, for example, that downloading popular music is legally risky. Those who want to get moralistic about it argue that illegal downloading violates a "property" right of the copyright holder. But what about our property rights in our computers? Even if copyright is a form of property, it maintains a parallel existence as an intrusion upon property rights. This intrusion is increasingly a part of daily life, as copyright's literal scope sweeps broadly enough to threaten a range of everyday activities that social norms rega rd as acceptable. These observations form the basis of a "moral" critique of copyright law, but they do not figure prominently in modern doctrine. This Article looks to the common law property rights of copyright users to develop a framework for limiting copyright's reach. If we take seriously traditional rules governing the interplay between statutes and preexisting common law rights, courts have room to incorporate user property rights into copyright doctrine. First, the common law provides a baseline against which the Copyright Act should be construed. Courts should be reluctant to interpret the statute in a manner that negates longstanding expectations that personal property may be used in conjunction with copyrighted material for personal purposes. Second, the property rights of copyright users offer a new foundation for implied license doctrine. Instead of looking solely to the conduct of the licensor (i.e., the copyright holder) to determine whether an implied license to use copyrighted content exists, courts should appreciate the reasonable expectations of consumers in their control of personal property used to interact with the protected works. Expanding our conception of implied license in this manner would help address the uneasy status of personal uses of copyrighted work s under modern law.
Property Is a Two-Way Street: Personal Copyright Use and Implied Authorization,
79 Fordham L. Rev. 435
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