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In real space, then, the possible uses of a book are divided into three
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
are nonetheless deemed “fair” regardless of the copyright owner’s views.
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy. 18 And because of this single,
arbitrary feature of the design of a digital network, the scope of category
1 changes dramatically. Uses that before were presumptively unregulated
are now presumptively regulated. No longer is there a set of
presumptively unregulated uses that define a freedom associated with a
copyrighted work. Instead, each use is now subject to the copyright,
because each use also makes a copy—category 1 gets sucked into category
2. And those who would defend the unregulated uses of copyrighted
work must look exclusively to category 3, fair uses, to bear the
burden of this shift.
So let’s be very specific to make this general point clear. Before the
Internet, if you purchased a book and read it ten times, there would be
no plausible copyright-related argument that the copyright owner could
make to control that use of her book. Copyright law would have nothing
to say about whether you read the book once, ten times, or every
“PROPERTY” 143