We Have Come Full Circle from the Guild Monopoly of the Stationers' Company to the Guild Monopoly of the Digital Millennium Copyright Act

Copyright is dead. The Digital Millennium Copyright Act ("DMCA") has killed it. This does not mean that copyright has or will become irrelevant to the protection of creative works in this country. To the contrary, the exclusive rights set forth in Title 17 of the United States Code will continue to provide an important source of protection for works of authorship. The term "copyright," however, means more than a system of protecting creative works against unauthorized copying. Copyright signifies a system of protection designed and intended primarily to serve the public interest in the creation and dissemination of creative works, rather than the private interest of enriching those who create and disseminate such works. Where the first is copyright, the second is mere guild monopoly. With the enactment of the DMCA, there is a very real danger that our system of protecting creative works will serve primarily private interests. If so, then the protection of creative works will have come full circle, from the guild monopoly of the Stationers' Company to the guild monopoly of the DMCA, and copyright, in the sense of protection intended primarily to serve the public interest, will surely have died.

During the Anglo-American legal system's last experience with guild monopoly, the Stationers' Company of London controlled almost exclusively the publication of written works in England from 1556 to 1694. As one might expect, and as courts from time to time remind us, the Stationers' Company did not always, or even usually, exercise its control over printing in a benign manner designed to advance the public welfare as a whole. To the contrary, securing the profits of a favored few within the guild seemed to be the Stationers' Company's guiding principle. In the end, the English Parliament was persuaded by the Company's excesses to refuse to renew the last of the Licensing Acts through which the Company had maintained its power. A decade and a half later, those same excesses led the English Parliament to replace guild control with the first copyright statute, found in the 1709 Statute of Anne.

--Glynn S. Lunney Jr., "The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act," Virginia Law Review 87, no. 5 (September 2001): 814-815.