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The rapid advances in the technology of communication are moving our society ever closer to what scores of futurists have long predicted: A world in which we all sit at home, visiting with one another only through our telecommunication devices. To be sure, that world is still a good way off, but it is unnecessary to keep one's ear to the ground in order to hear the hoofbeats of its advance. The signs of change are all around us, and as the changes come, they continue, as Grant Gilmore once suggested, to unsettle both our law and our selves.
The law of intellectual property—a form of law that exists at least in part to govern and encourage technological advance—has been no less unsettled than has any other body of law. Copyright law in particular has turned magnificent analytical somersaults in order to accommodate new forms of expression of ideas. The literature has been full of recommendations for doctrinal change. Yet through it all, the discussion has been analytic and programmatic, asking the ubiquitous question: How can we best . . . ? Far too little attention, however, has been paid to the possibly more important question: Can we at all? Here, as elsewhere in our policy-oriented society, there seems to be a rush to regulate in pursuit of some chimeric public good, with questions of morality and even of constitutionality often postponed.
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