In the past, I had small disagreement with Robert Scoble in terms of republishing content. Robert said that "by publishing RSS as full text you're buying into a system where your words will be republished in a variety of ways." I disagreed with him, of course. The medium in which you publish does not affect your rights.

I'm writing a paper now on copyright in the digital context, and I'm starting to rethink this assertion - at least in terms of one particular right.

Fred recently made the point that, "perhaps more than ever before, a large portion of the technology sector today implicitly depends on fair use to shield its customers . . . from accusations of copyright infringement."

In most of these cases, the shield of fair use is needed due to an otherwise unlawful reproduction.  Everything in the digital world implicates the reproduction right; even consumption creates a copy for the purposes of infringement. (See, e.g., MAI Systems v. Peak Computer). Then we see things like the Apple delivery system which suggest that, in the future, we're probably going to implicate this right even more.

In this paper (which is still a draft right now), I've asserted that, because of this, a shift to the digital world represents a significant increase in the scope of rights.

How would the landscape change if there was an implied license to reproduce? Could we rely on things like the performance right instead?

Update: I've attached the paper I wrote on this subject, entitled Towards an Implied License to Reproduce.