Between Pragmatism and Anarchism: The American Copyright Revolt since 1998

Abstract

Since 1998 questions about whether the United States has constructed an equitable or effective copyright system frequently appear on the pages of daily newspapers. Calls both for stronger and looser copyright systems have grown in volume and furor. Such debate echoes around several important court cases. For example, the U.S. Supreme Court ruled in early 2003 that the foundations of American copyright, as expressed in the Constitution, are barely relevant in an age in which both media companies and clever consumers enjoy unprecedented power over the use of works. Such tensions and conflicts have been narrated through the frameworks of binaries such as vs. piracy and property vs. commons. Some accounts of recent copyright battles have emphasized the excessive, often absurd, level of protection and vigilance by copyright holders. Others have explored the influence of scholar-activists in the rise of a reform movement. In contrast, this paper argues that the best way to explain copyright trends and battles in recent years is to examine the struggles that individuals and groups have mounted on behalf of their rights and abilities to control their cultural and information ecosystems. This is a pragmatic analysis - focused on what people can and may do with their culture and the information available to them. The struggle has been about local and private autonomy over what gets sung, played, and made - about who gets to generate the soundtracks of American life in the 21st century.