By Brad A. Greenberg. Full text here.
Technology progresses at an increasingly rapid rate; Congressional action does not. How then should laws be drafted to keep pace with changes to the world they regulate? Scholars and legislators have overwhelmingly answered that laws should anticipate unexpected technologies through ex ante statutory inclusion. “Technology neutrality,” as this principle is known, assumes that drafting a law to general characteristics, rather than specific technologies, promotes statutory longevity and equal regulation of technologies old and new. This Article challenges that assumption.
In uncovering four problems inherent to technology neutrality, this Article recasts the drafting principle as suboptimal and often self-defeating. It does so through a case study of copyright law, which for the past four decades has been structured around technology-neutral default rules; copyright also has been plagued by countless revisions and inconsistent application to substantively equivalent technologies.
This rethinking leads to a counterintuitive alternative: technological discrimination. A mixture of neutrality and specificity, technological discrimination recognizes the unappreciated benefits of specificity—e.g., better tailoring and greater certainty—while responding to the shortcomings of neutrality revealed herein. Laws, including copyright, ought to be drafted to known technologies with what I call domain-specific neutrality, and should task courts and agencies with determining whether and how the law applies to innovations. This Article concludes by showing how technological discrimination could help copyright law better respond to new technologies like cloud computing. It also considers implications for patent law.