Disappearing Content

One of the great advantages of digital content has been that for the last forty years, people have had access to whatever content they want whenever they wanted it. That is starting to change. We’re moving backwards. Content is disappearing – not just becoming available only in limited times or circumstances, but becoming entirely unavailable.

It doesn’t need to be that way. It is now cheap and easy enough to make all content available. If the copyright owner can’t or won’t continue to provide a published work, others should be permitted to pick up the slack. Fair use should encompass a right of access to published content. That right, like all of fair use, ought to have limits and exceptions. I discuss a number of complications and reasons why copyright owners might lawfully remove content. But a basic right to continued access to published work is consistent with the fundamental purposes of copyright.

In the past we might have aspired to a world in which all the works of history were available forever. But that’s now an achievable goal. The dead hand control of copyright shouldn’t stand in the way.

Mark A. Lemley

SSRN

December 29, 2020

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