Law and education must change since the realities they control and shape have changed.

Changes in reality requires changes in the law, in the ways we practice law, and in the ways we teach. What has been Best hasn’t been Best because it is the Best for all time but, rather, because it has been the Best way we’ve figured out how to do what we want under the circumstances that have faced us. Change the circumstances, and what’s Best changes.

Nothing the RIAA does to enforce the interpretations of copyright laws formed when record companies had a virtual monopoly on producing and distributing recorded music is going to change the inevitable consequences of the fact that the technology to produce and distribute recorded music is now available to any individual with a laptop and an internet connection.

Nothing lawyers scream at their clients is going to change the fact that personal expression is more public and more permanent than ever before. All the insistence in the world on traditional rules regarding the formation of contracts isn’t going to change the fact that applying those rules strictly to the online marketplace is going to create a mess.

And nothing is going to change the fact that my students and my kids spend their time differently than I did and want to use different tools to express themselves than I did.

Realizing my son’s obsessions with things that don’t seem to matter (video games) are not necessarily worse than the ones I grew up with (professional sports) might even help me communicate with him about what creativity is.

Stop those dangerous . . . er, player pianos!

Copyright legislation throughout history has primarily consisted of congressional efforts to preserve financial interests threatened by new technologies. We are, of course, living through a technological revolution right now, so we are living through copyright wars. 

But who knew the 1909 Copyright Act (in effect until the current one was enacted and signed into law in 1976) was a response to the threat posed by . . . yes, PLAYER PIANOS!

Music publishers, who had secured their rights in sheet music, were freaked out at the thought there might be mechanical reproductions of their music they wouldn’t be paid for. As Mike Masnick explains it at Techdirt

The big innovation of the 1909 copyright [Act] was compulsory licensing on mechanical rights. This was put into place for one reason: fear about player pianos and how they would dominate the market and destroy the need for musicians. Within a matter of decades, the player piano market was effectively gone… and yet, these massive changes designed solely to deal with the player piano have stuck around ever since. Now apply that same story to basically every other technological innovation, and that gets you copyright law.

You don’t have to look far to find a current example that proves Mike’s point.  Amazon’s Kindle2 ebook hit the market with the capacity to read the electronic texts loaded into it aloud in a computer-generated voice. As afterdawn reports, “the Author’s Guild saw this feature as a“performance” when used and pressured Amazon to allow publishers to decide on an eBook-by-eBook basis whether to enable the feature or not.” Whether this new technology represents a genuine threat to the existing financial interests of publishers and/or authors is pure speculation, but the Author’s Guild is adamant:

 We will not . . .  surrender our members’ economic rights to Amazon or anyone else. The leap to digital has been brutal for print media generally, and the economics of the transition from print to e-books do not look as promising as many assume. Authors can’t afford to start this transition to digital by abandoning rights.”  

Of course, the Authors Guild was the lead plaintiff in the lawsuit directed at shutting down a much vaster and more revolutionary technological advance, the Google Library Project.  As I have written, I never understood what good they possibly have been doing themselves if they’d stopped that project.  Nor can I understand their efforts to stifle the transition we plainly are going through into electronic books.  

But now I know: you see a machine that can reproduce your “property,” and all you can think is you’ve got to stop that machine.  Even if it is just a player piano.