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Journal of Technology Law & Policy

Document Type

Article

Abstract

In this Article, I describe how a sound analysis of precedent—coupled with proper statutory construction—yields a meaning for reproduction that is indeed adaptable to many unforeseen practices, but far from boundless. I proceed chronologically through the history of the reproduction right: Part II first surveys the relevant tenets of originalism. Part II then traces the roots of the reproduction right back to a landmark 1908 case in which the Supreme Court synthesized a robust standard grounded in reason and history, and also shows how legislation enacted the following year incorporated this standard. Part III discusses the next (and current) revision, the Copyright Act of 1976, building on the foundation of Part II to contend that the essential criteria for copying and reproduction went unchanged. Developments since 1976 are tracked in Part IV, V, and VI—respectively covering the 1980 amendments and their adjudication, key cases from the 1990s, and the Digital Millennium Copyright Act (DMCA) of 1998. The theme throughout is that, despite legislative reorganizations, additions, and niche-provisions, Congress has never actually altered what it means to “copy”—so the Supreme Court’s accurate definition as of 1908 remains binding today.

In the process, I argue that intellectual property bargains implicate statutory originalist or separation-of-powers concerns as much as any congressional domain, and that repudiating baseless precedent is itself precedented for major copyright doctrine. Despite an accumulated line of cases systematically misconstruing the reach of copyright’s namesake grant, as well as indications of legislative and executive confusion on the matter, I submit that the propriety of purging erroneous precedent outweighs any advantage of persisting in such error.

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