Fair Use and "Digital Environmentalism"

Some of the most significant changes in intellectual property law took place in the Copyright Act of 1976, after which it was no longer required to register one's work in order to protect it. Anything "fixed in a tangible medium"—e-mail messages, those doodles in the margins of this magazine—automatically became copyrighted. Recent laws—like the 1998 Digital Millennium Copyright Act, which increased protection of copyrighted material on the Internet, and the Sonny Bono Act—have elevated intellectual property's status to such a degree that many courts and corporations often treat it in virtually the same way as they do physical property.
This is a category mistake, and one explicitly forbidden according to Article 1, Section 8 of the Constitution, which gives Congress the authority to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'' Unlike Europe, whose laws center on the "moral rights" of the author to control his creation, American copyright law has always had the strictly utilitarian goal of providing just enough incentive for someone to create. Copyright is a bargain: The government grants a limited right to profit from your intellectual property in exchange for your agreement to give the public limited access to it during that period (such as the "fair use" right of a teacher to make class copies of an essay), and, eventually, for it to lapse into the public domain.