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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