The power and ubiquity of personal computing and the Internet have enabled individuals - even impecunious amateurs - to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law - insisting on ownership of their rights and controlling the ways in which those rights are licensed to others. Facebook users are demanding ownership of their online musings. Scholars are archiving their research online and refusing to assign their copyrights to publishers. Independent musicians are streaming their own songs and operating without record companies. Organizations like the Free Software Foundation are encouraging individual authors to manage their copyrights in innovative ways.

When the myriad individual authors empowered by today’s ubiquitous digital technology claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call "copyright atomism" - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law, and of idiosyncratic permutations of those rights. The information and transaction costs associated with atomism could hamper future generations of technology-fueled creativity and thus undermine the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.

In this project I aim to place contemporary copyright atomism in historical and doctrinal context by documenting copyright law’s previous encounters with proliferated, distributed, and fragmented copyright ownership. Along the way I examine how copyright law has encouraged and discouraged atomism and managed its consequences. This history demonstrates the enduring relevance of my concerns within copyright policy, highlights countervailing interests, and provides a framework for thinking about how to alleviate the unfortunate consequences of atomism - and how not to.

In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products—computer programs, digital music, et cetera—often arrive bearing terms that purport to limit the sticks in the consumers’ bundles of rights in ways that depart from the background limitations imposed by intellectual property law. For example, a consumer who has downloaded a computer program from the Internet might be presented with a screen of text imposing myriad restrictions on how the program may be used; installation commences only when the consumer clicks “I agree.” Courts in the United States have increasingly enforced such restrictions—labeling them “click-wrap licenses” and applying to them the same contractual concepts that govern face-to-face exchanges of promises. Similar licensing approaches—albeit with quite different substantive terms—have been extended into the realms of “free software” and “free culture.”

The law of tangible property offers a different lens through which to view these contemporary techniques for distributing and controlling intangible products. When someone buys land that is purportedly subject to use restrictions imposed by a prior owner, those restrictions are sometimes enforced as “servitudes”— non-possessory property interests that attach to land and impose their restrictions and obligations on generation after generation of landowners. Like click-wrap licenses and similar techniques of the digital age, use restrictions imposed by servitudes bind remote purchasers with whom the beneficiaries of the restrictions may have no direct relationship. They do not arise from any human communication, but instead “run with” the burdened assets.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this Article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices—including Microsoft end-user license agreements, the Free Software Foundation’s General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems—and also the promise—of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally and historically grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

Fair use is a mechanism to balance public interest with a copyright holder’s rights. A missing element in fair use disputes is adequate consideration of the role intermediaries, such as for-profit companies, libraries, universities, and other institutions, play in shaping how the public makes fair uses. I contend that intermediaries have been central in shaping copyright law on the books and on the ground, and that the law of fair use should be even more attentive to the intermediary-user dynamic.

Chapter One is a glimpse of the gap between law on paper and law on the ground when it comes to maintaining a balance in copyright law. This is illustrated by the enduring role that intermediaries have had a in shaping copyright law and practice in the developing world, and particularly in South Asia. I describe the role of publishers as key intermediaries in Colonial India, and the shortcomings in international instruments to fulfill the needs of developing countries. I discuss this gap as manifesting in the form of shadow libraries and the legal response to them. In Chapter Two, I draw inspiration from the insights in Chapter One to take a deeper look at the intermediary-user dynamic in fair use in the United States. Intermediaries are often found to be the facilitators of individual fair use, especially with the advent of digital technologies. The intermediary-user dynamic needs to be a central part of the fair use analysis involving intermediaries, and I propose a tiered framework that incorporates the relationship between users and intermediaries into the analysis. Fair use needs to incorporate both the end user’s benefit and the intermediary’s position in order to balance the use with the copyright holder’s interest. The proposed framework would lend stability and certainty to the various intermediary activities highlighted in the dissertation, and others like them around the world—leading to a better understanding of how fair use and other copyright exceptions may be customized for different contexts.

Most online communication takes place on centralized platforms operated by private companies. These services are accessible globally but operated by companies subject to national laws, including copyright laws, which vary greatly across countries, creating incentives for online service providers (OSPs) to geographically segment their services. Because copyright law is territorial in nature and licensing markets are often national, scholars assumed that national copyright laws exacerbate fragmentation pressures on online services and drive the use of geoblocking technologies to enforce territorial licensing restrictions on digital music and movie content. This dissertation seeks to understand how copyright law actually shapes the practices, policies, and decision-making processes of OSPs, through interviews with current and former legal and policy staff at a range of globally accessible OSPs, including operators of user-generated content hosting and web search services. It also seeks to understand whether, and to what extent, operators of globally accessible online services take into account other jurisdictions’ copyright laws in their day-to-day operations where they differ from U.S. copyright law’s liability standards and enforcement mechanisms.

Based on interviews, this dissertation concludes that copyright law has both direct and indirect effects on the practices, decision-making processes, and governance structures of OSPs. It finds that the U.S. statutory OSP limitation of liability regime established by the Digital Millennium Copyright Act (DMCA) plays a key role in shaping OSPs’ practices. For OSPs that have operationalized its eligibility requirements, the DMCA has become constitutive, resulting in companies adopting staffing structures and training programs to implement the DMCA’s notice and takedown process and using its standards to manage nondomestic copyright liability risk. Some also use the DMCA’s ex-post takedown process to afford national treatment to foreign copyright holders’ works, relying on the internationally harmonized nature of copyright law, and the DMCA’s compatibility with other jurisdictions’ statutory limitation of liability regimes. Contrary to the assumed fragmentary impact of national copyright laws, OSPs appear to be using a part of the U.S. copyright system that is not part of the internationally-harmonized copyright framework—the U.S. statutory safe harbor regime’s takedown process—to mediate complex conflict of law issues, reduce transaction costs for copyright holders, and mitigate the potential fragmentary effects of national copyright laws for users of online services.

Additionally, it finds that divergences between national copyright laws have differential impacts on OSPs, depending on their level of resources. Some OSPs engage in jurisdictional copyright risk analysis, design and build new products, and modify existing services to minimize copyright liability in multiple jurisdictions. Less-resourced OSPs rely on the DMCA safe harbor regime to manage potential nondomestic copyright liability. This is significant because pending European Union copyright legislation will create a divergence between U.S. and EU copyright liability rules governing OSPs. This dissertation concludes that the new EU Copyright Directive is likely to have a differential and more detrimental impact on less-resourced OSPs but may result in further entrenchment of more-resourced incumbent hosting OSPs. It concludes by considering some of the limitations and safeguards in the pending EU Copyright Directive and how it may affect U.S. copyright law and the regulation of OSP liability globally.