Harry Surden, ‘Technological Cost as Law in Intellectual Property’

Introduction:
… This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. To understand this argument, consider how activities important to IP law can be implicitly constrained by technological limitations and how this constraint can influence positive IP law. The unauthorized copying of creative works by third parties is a core concern of copyright law, as such copying can diminish the value that an author can appropriate. However, throughout much of the twentieth century, federal copyright law did not protect sound recordings (e.g., music albums) from duplication. This was a notable omission because during this same period federal copyright law did include explicit protection for many other types of creative works, including books, sheet music, etc …

Harry Surden, ‘Technological Cost as Law in Intellectual Property’. Harvard Journal of Law and Technology, Volume 27, Number 1, Fall 2013.

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