I agree with Jon that the physical/digital distinction may not be as important as it seems. Professor Long made a good argument in her Copyright class that Sony could easily have come out differently if it had occurred a few years later - at the time of Sony, video tapes were very expensive, and people were (as discussed in the opinion) mostly using them for "time shifting" programming. The cost of the tapes prevented recording large libraries of copied programming. Professor Long argues that if VCRs had been commonly used to record and keep copyrighted television at the time of the decision (as it was a few years later), the Court would have been far more reluctant to come out the way it did.

I also was not sure about your assertion that a legal solution has to be based in the Constitution rather than copyright (also, isn't copyright based in the constitution?), and that this could be attained by shifting the metaphor to that of a public square. I am not sure why you do not think there could solutions in a reform of copyright law; however, even if we choose a constitutional path, it is still illegal to sell "stolen" goods in a public square. (It is also illegal to perform a copyrighted work in a public square, barring fair use.) I think shifting the metaphor requires more than moving the ostensible place of the transaction - you imply this, but I thought you could have been more explicit about the real challenge, changing copyrighted "stuff" into speech.

-- TheodoreSmith - 15 May 2009