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74 Fordham L. Rev. 347 (2005-2006)
The Place of the User in Copyright Law

handle is hein.journals/flr74 and id is 363 raw text is: PANEL I: INTELLECTUAL PROPERTY AND PUBLIC VALUES THE PLACE OF THE USER IN COPYRIGHT LAW Julie E. Cohen* I. THREE CHARACTERS IN SEARCH OF THE USER The past decade has witnessed an upsurge of interest, on the part of both copyright owners and copyright scholars, in users of copyrighted works. Copyright owners have sought to gain greater control of user behavior, particularly with regard to unauthorized copying of digital files, and to instantiate new norms about the limits of appropriate use. Copyright scholars, meanwhile, have debated the empirical and normative bases for these efforts, as well as the language employed to frame the discussion. In particular, much criticism has been leveled at the term consumer, which some scholars have charged has misleading and normatively inappropriate connotations about the ways that humans receive and interact with cultural goods) Most of us now seem to have settled, though not without some awkwardness, on users, a term that manages simultaneously to connote both more active involvement in the processes of culture and a residual aura of addiction that may be entirely appropriate to the age of the iPod, the XBox, and the blogosphere. Copyright doctrine, however, is characterized by the absence of the user. As copyright moves into the digital age, this absence has begun to matter profoundly. As I will show, the absence of the user has consequences that reach far beyond debates about the legality of private copying, or about the proper scope of user-oriented exemptions such as the fair use and first sale doctrines. The user's absence produces a domino effect that ripples through * Professor of Law, Georgetown University Law Center, Thanks to Joel Reidenberg for inviting me to participate in the symposium on Law and the Information Society, to Niva Elkin-Koren, Joseph Liu, Michael Madison, David McGowan, Marc Spindelman, Rebecca Tushnet, Molly Van Houweling, and Fred von Lohmann for helpful comments and conversations, and to Matthew Windsor and Robert Dowers for research assistance. © 2005, Julie E. Cohen. This work is made available under a Creative Commons license for noncommercial use with attribution, supplemented to require acknowledgement of initial publication in the Fordham Law Review. For the terms of the license, see http://creativecomons.org/licenses/by-nc/2.5/. 1. See, e.g., Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561 (2000).

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