I've enjoyed reading the discussion here and elsewhere this week about the uncertain and unpredictable nature of copyright law today and whether and why it matters. (Some links aggregated here.) To answer Marty's earlier question to Dennis, the reason I worry about this stuff is to me it's another example of a problem we've historically created and relatively recently identified, but haven't solved and now threaten to foist upon our kids and grandkids.

Copyright law is like an aging house. Though it may still serve its central purpose of providing a roof overhead for its owners, its infrastructure and plumbing have reached the end of their useful lives, and need to be updated if the whole structure is to remain sound for decades to come. The areas most desperately in need of renovation are:

1. The scope of copyright. What does and does not need to be protected in today's day and age, and when should protection attach?
2. The definition of infringement. Where should the focus be, e.g., on copying, or as Ernie Miller suggests, distribution? Certain forms of copying and distribution deserve to be treated differently than others from a policy standpoint, and they should be definitively carved out of the definition.
3. The requirement of harm. In cases where an activity is technically infringing but actually confers economic benefits on the rights holder and cultural benefits on society, there should be more roadblocks to a legal recovery than are in place today.

How do we know the current copyright structure really needs this remodel? Dennis' post is illustrative, and one could devote many hours (indeed, many already have and regularly do) to chronicling similar examples. The cornerstones of "thievery" and "piracy" have been eroded by technology and utility, and by the old fair use standbys of news, commentary, art, education, and science. When your child takes something from a store, you explain why that was wrong and take her back to apologize and return it. When she mods her Xbox so she can back up her games to its hard drive and improve its performance, a similar trip to Redmond is the last thing on your mind. You're too busy considering her prospects and potential.

Who are the general and sub-contractors of this remodel? We all are. Participatory journalism gets a good deal of attention, but with the kind of unprecedented, unmediated, and distributed influence on the lawmaking process becoming possible today, "participatory law" is just as important, if not more so. Conversations like this one can become part of the analysis, and so can ideas generated around Creative Commons, collective licensing, and collaborative editing of scholarly texts. Keep hacking and hammering folks, and just maybe our children will inherit fewer constraints and uncertainties, and a better world.