5 Yale J.L. & Tech. 141

Digital technologies permit the wide distribution of perfect copies at virtually no marginal cost. Evidently this poses a problem for content providers: how could they make money if their product is freely available after its first sale? As we all know, reframing the copyright laws has become the answer. Notably, these revisions were an integrated international policy campaign, not distinct national fights. The newly extended control, based on legally reinforced digital “containers” and trade law, arguably permits those who sell content effectively to “enclose” the public domain, to insulate their business models, and to define technological development. In this article, I will argue that content providers are “recreating the bottle” around their intellectual property, using digital technologies to reinforce their business models and supplant copyright. The content industries have successfully driven political fights, dramatically strengthening their control of content in the digital era. International treaties and agreements have been leveraged to strengthen and enforce intellectual property protection, forcing a globally “harmonized” reformulation of national laws. The resulting copyright policies have not been a simple translation of the old laws and enforcement mechanisms to a new technological era. In the revision of the intellectual property laws, the content industries claimed new power to control their intellectual property. Secondly, I will show that the new policies adopted have undermined the traditional balance in intellectual property law between creator compensation and limits on the creator’s exclusive rights. IP law was created to foster a vibrant public domain by encouraging the creation and exchange of knowledge. Recent developments have shifted that balance with a dramatic and one-sided strengthening of intellectual property rights. These policies empowered digital containers, or code, and trade law as the new