Judging from the headlines, it appears that copyright law is in an existential crisis. Broadband networks and digital applications have widely expanded unlicensed access to copyrighted content. Consumer-to-consumer dissemination over file-sharing networks increasingly bypasses traditional segments of the copyright market. Despite the deployment of a wide array of scare tactics, professional distributors have failed thus far to reverse file sharing and copyright circumvention.

Two paradigms exist to analyze the existential crisis facing copyright law: the political-economy model and the technological paradigm. In the political-economy model, the death of copyright law is caused by legislative and judicial capture by copyright owners, which negates the original, true meaning of copyright law. The technological paradigm argues that digital technology has rendered copyright law hopelessly obsolete or, from the entertainment industry's viewpoint, dangerously ineffective. Commentators argue that "digital copyright" requires a type of governance different from the historical straitjacket of copyright law. Interested parties disagree on the appropriate direction of copyright law: namely, does new technology require a stronger legal hold on copyrighted content or does digital technology present an opportunity to release cultural goods from the shackles of copyright law?

With every court decision or appeal to Congress, the debate over the proper adjustment of copyright law becomes further polarized. At one end, we find the entertainment industry, while on the other end we have consumers, scholars, and civil libertarians. The former argues that the entertainment industry will not survive unless intellectual property laws are strengthened to meet the threat of new technologies and the widespread theft that occurs over the Internet. The latter maintain that new technology presents opportunities for unprecedented cultural exchange, suggesting that existing legal and institutional arrangements reduce economic welfare by strangling technological progress. At regular intervals, both sides present their arguments before the Supreme Court. Meanwhile, the copyright tug of war attains iconoclastic dimensions.

Technology and Uncertainty: The Shaping Effect on Copyright Law