Gordon Hull

This paper attempts a theoretical discussion of effects on the legal regime of copyright induced by the change from material to digital media. Specifically, a fundamental question remains unanswered: what is the relationship between an object and a copy? A conceptually clear answer to this question has been unnecessary because it has always been possible to provide an ad hoc answer through visual inspection of an object. Authorized mechanical reproductions – authorized copies – look similar to one another, and unauthorized reproductions bear tangible evidence of degradation. Digital reproduction, however, makes such visual inspection impossible, as both authorized and unauthorized digital reproductions look the same. At that moment, one “would expect” that copyright protects the essence of the object, independently of how it looks. Indeed, this is precisely what copyright jurisprudence, which emphasizes originality, tries to do. However, absent the baseline of visual intelligibility, there is no criterion for knowing which object legitimately embodies its eidos and which does not. The effects of this absence stand behind many of the battles surrounding digital reproduction. In section 2, I discuss more precisely how digital reproduction undermines the original/copy distinction. In section 3, I show how the effects of this are manifest in contemporary debates. Section 4 attempts a more theoretical discussion, organized around Deleuze's discussion of Platonism (and the degree to which, for Deleuze, the Platonic original/copy distinction functions to enable the police work of good copy/bad copy). The essay concludes with some thoughts about future developments in copyright and the suggestion that the move to digital rights management technologies are appropriately seen as a response to these conceptual limitations in copyright.

This paper uses Heidegger’s discussion of artifacts in Being and Time to motivate a phenomenological critique of Digital Rights Management regimes such as the one that allows DVDs to require one to watch commercials and copyright notices. In the first section, I briefly sketch traditional ethical approaches to intellectual property and indicate the gap that a phenomenological approach can fill. In section 2, following Heidegger’s discussion in Being and Time, I analyze DRM technologies as exemplary of the breakdown of things as ready-to-hand; in particular, DRM is an example of what Heidegger calls "obstinacy." In section 3, I argue that this sort of concern generalizes beyond digital rights management due to its imbrication in ordinary, everyday experience. Finally, in section 4, I propose a framework for analyzing DRM in terms of our individuation from "the They," emphasizing how DRM undermines the functioning of "responsibility."

Walter Benjamin’s work shows evidence of a sustained engagement with Kant and neo-Kantianism, particularly his thoughts on history and experience. I read Benjamin’s “Theses” and “Theologico-Political Fragment” against Kant’s “Idea for a Cosmopolitan History” to suggest that actual experience becomes an impossibility in the Kantian system because historical events always outrun the efforts of the Kantian apparatus to contain them. That Kant ignores these excesses indicates the theological basis of his system. Benjamin’s “messianism” can then be read as a thoroughgoing materialist critique of the Kantian position and its consequences