As pop culture and the halls of Congress alike continue to be in thrall to the latest, loudest technopanics about AI and the end of copyright as we know it, two appeals courts quietly confirmed that actually, we are living in a golden age of copyright control. First came Green v. DOJ, which rejected a constitutional challenge to the Digital Millennium Copyright Act’s provisions barring the hacking of digital locks (often called “Digital Rights Management” or DRM), even by lawful owners engaged in lawful uses of the underlying works. Digital locks can make it impossible to capture a snippet of video, audio, or text in order to criticize it, comment on it, or use it as part of a transformative new work. The upshot of the opinion is that a copyright holder’s right to use a digital lock to control uses, even fair uses by lawful owners, trumps the First Amendment rights of critics, teachers, artists, and others whose expression requires transformative use. The court unironically suggests that filmmakers barred by the DMCA from using a clip from DRM-ed news program in their documentary could instead reenact the program with actors. I guess that’s one way to encourage creativity.

Next came Hachette v. Internet Archive, decided this week, in which the Second Circuit ruled that libraries who own physical copies of books cannot use DRM technology to facilitate controlled digital lending of their books to library patrons. The outcome of this case may be more predictable under established fair use precedent, but the upshot is no less concerning: in the absence of any alternative mode of access, the publisher oligopoly can unilaterally dictate price and access terms in ebook licenses for libraries, extracting huge sums for limited access. And when their license terms expire, those books will disappear from library collections; long-term preservation and access is left to the fickle whims of commercial interests.

As publishers frantically hoard their digital assets behind paywalls to create a new market for AI training, and try to destroy publicly available data that offers a fair-use based alternative, it’s worth considering how quickly the pendulum swings in the digital realm. The content monopolies who profess to be the victims of the digital shift seem to have an uncanny ability to turn every alleged digital threat into a new mode of digital control, while actual creators and the public pay the (literal) price. Rest assured that proposals like NO FAKES, COPIED, and other bills written by and for the self-professed victims of digital technology would have the same effect.