Digital Copyright.

• Author: Samuelson, Pamela

DIGITAL COPYRIGHT. By Jessica Litman. Amherst, New York: Prometheus Books. 2001. Pp. 208. Cloth, $25.

1. INTRODUCTION

   Jessica Litman (1) believes the public needs a very good copyright lawyer, and if I have not mistaken her intentions, she is volunteering for the job (pp. 70-73). A century of Congressional deference to industry-negotiated compromises has produced, she argues, a copyright law that is both incomprehensible and unfair. (2) This incomprehensibility might be tolerable if copyright law governed only commercial relations among industry participants, all of whom have copyright counsel. To the extent that copyright law applies to the conduct of ordinary persons, (3) its incomprehensibility presents serious difficulties. (4) Moreover, to the extent that copyright law makes illegal many ordinary activities of individuals (5)--for example, making private copies of music for oneself or to share with a friend or forwarding articles to friends via the Internet--it has become unfair as well (pp. 19, 28). As the public's copyright lawyer, Jessica Litman advises us not to accept the current deal (p. 20). In Digital Copyright, she outlines a framework for a copyright law that would be a new and better deal for the public and would be short, comprehensible, and normative in character (pp. 180-84).

   While Litman does not advocate lawlessness until the new deal has been adopted, she makes clear that she does not object to widespread noncompliance with copyright law in the meantime. In fact, the public's noncompliance with strict copyright rules fuels Litman's hopes for eventual change (p. 194). People do not obey laws they don't believe in, she argues, and governments find it difficult to enforce laws that lack public support (p. 112). Therefore, if something has to change, Litman believes it will be copyright law, not the behavior of the public. Digital Copyright is Litman's paean to a future in which copyright will once again be a component of the nation's enlightened information policy.

   As will become evident (if it isn't already), Litman's perspective on copyright law and my own are quite similar. Yet Litman's work is distinctive in several respects: in her informed historical perspective on copyright law and its legislative policy; her remarkable ability to translate complicated copyright concepts and their implications into plain English; her willingness to study, understand, and take seriously what ordinary people think copyright law means; and her creativity in formulating alternatives to the present copyright quagmire. (6) Perhaps it is too much to ask that Digital Copyright also provide concrete strategies for transforming the copyright legislative process so that the new deal of copyright would become feasible. It is difficult, however, to come away from this book without wishing Litman had the ingenuity to be the public's chief strategist for achieving the new deal as well.

2. COPYRIGHT POLICY AND THE LEGISLATIVE PROCESS

   Much of Litman's career has been devoted to studying and writing about the legislative process for making copyright policy. (7) She is one of the few living persons familiar with the entire legislative history--some twenty years' worth of materials--of the Copyright Act of 1976. One might initially have thought that the past hundred years of copyright lawmaking would be a very abstruse subject with little or no relevance to current digital copyright debates. In Digital Copyright, Litman shows that this history has considerable significance and, in fact, is at the heart of the problem.

   A key legislative development of the past century is the evolution of a pattern of congressional activity on making copyright law and policy. About one hundred years ago, says Litman,

   Congress got into the habit of revising copyright law by encouraging representatives of the industries affected by copyright to hash out among themselves what changes needed to be made and then present Congress with the text of appropriate legislation. By the 1920's, the process was sufficiently entrenched that whenever a member of Congress came up with a legislative proposal without going through the cumbersome prelegislative process of multiparty negotiations, the affected industries united to block the bill. (p. 20) Litman observes that this process "generates legislation with some predictable features" (pp. 23-24). For one thing, established industry players will not support any bill that would leave them worse off than under current law. Second, these players will frequently characterize the state of current law as though it already favors their position, the current law being the baseline against which negotiations will occur. Third, negotiations tend to result in very specific and detailed rules that resolve the main concerns of the players at that stage of the industry's history. The first two of these features tend to tilt copyright law in the direction of ever stronger protection, while the third contributes to the law's incomprehensibility. In addition, "[t]his type of drafting process makes it exceedingly difficult to speak of legislative intent if by legislative intent one means the substantive intent of members of Congress" or to discern "any overall purpose pervading the text of the statute" (p. 53).

   Delegation of legislative drafting to affected industry groups has some undeniable benefits. Copyright industry representatives obviously have a much better understanding of the likely impacts of particular rules for their industry than do members of Congress (p. 61). Insofar as the affected industry groups are able to reach consensus on legislation, Congress can have confidence that this will produce workable results. Congress may also assume that the resulting legislation must adequately balance the interests of the affected parties; otherwise the compromise would not have been achieved. (8) Delegation of authority to the industry thus not only takes advantage of industry expertise, but it also makes lawmaking on copyright issues politically feasible (p. 73).

   This pattern of industry-negotiated and industry-drafted legislation also has negative consequences. Among the most serious is that emerging industries--along with those that have yet to be invented--do not have a seat at the negotiating table, and hence their interests will generally not be taken into account in the process of crafting revisions to the law (p. 62). Moreover, to the extent that established industry players perceive emerging industries as threats to their hegemony, they will be inclined to craft legislation granting them advantages over these rivals (pp. 144-45).

   Litman gives both past and contemporary examples of this phenomenon. In the early days of the sound recording and motion picture industries, for example, these nascent industries did not have a seat at the negotiating table, and they consequently had no influence over rules adopted without attention to their interests or in order to disadvantage them (p. 39). Now that these industries have become established players, they exercise their considerable clout in the legislative process to disadvantage upstart Internet-savvy rivals, as evidenced in the Digital Millennium Copyright Act ("DMCA"). (9)

   Litman explains that disadvantaging upstart rivals is much easier now than it was thirty years ago because of a major restructuring of U.S. copyright law in 1976. The Copyright Act of 1909 and its predecessor statutes granted different sets of exclusive rights to different kinds of works. (10) The narrow crafting of the 1909 Act's exclusive rights provisions often meant that a new technology or industry escaped liability because Congress had not anticipated it. (11) The law was amended numerous times to take new technologies or industries into account, sometimes the goal being to provide the new industry with copyright protection (12) and sometimes to extend the rights of an existing industry so that the emergent industry had to pay for its use of copyrighted materials. (13) The Copyright Act of 1976 adopted a far simpler structure in which virtually all works were accorded the same set of five exclusive rights, (14) which were qualified by a series of very specific exceptions. (15) Libraries, veterans' groups, and nonprofit horticultural organizations were among the groups that managed to persuade Congress to exempt some of their activities from copyright law. (16)

   Litman argues that the 1976 Act dramatically changed copyright law's baseline presumption from one in which upstarts often found shelter because existing rights were narrowly crafted to one in which upstarts were likely to run afoul of a broad exclusive right. In the post-1976 era, upstarts rarely qualify for an existing exception because the need for such an exception was not recognized in 1976 (p. 37). This pattern of broad rights and narrow limitations is replicated in the new DMCA rules outlawing acts of circumvention of technical measures used by copyright owners to protect access to their works and outlawing circumvention technologies. (17)

   As serious as may be the exclusion of emerging industries from the copyright lawmaking process and the impact of the restructured copyright law for emerging industries, this is not Litman's main concern in Digital Copyright. Rather, her primary concern is with the impact of the current law on the activities of ordinary people, particularly as regards use of digital information on the Internet. The public has also been excluded from the copyright legislative process. To the extent that copyright law applies to private activities of members of the public, this exclusion is unacceptable (p. 116). The broad rights/narrow exceptions structure of the 1976 Act arguably disadvantages members of the public just as it does emerging industries. Moreover, the copyright industry's sense of ownership of the copyright policy process--and Congress's acquiescence in this, owing at least in...