Jessica Litman. John F. Nickoll Professor of Law and Professor of Information, University of Michigan. I’m grateful to Jon Weinberg, Seana Shiffrin, Jane Ginsburg, Rebecca Tushnet, Tom Cotter, and Kurt Hunt for helpful comments on earlier drafts. I also owe an enormous debt to Pamela Samuelson for raising the topic of copyright reform and sponsoring ongoing discussions of the shape reform might take. My conversations with many people have influenced my thinking, but I am especially grateful to Jon Baumgarten, Mike Carroll, Julie Cohen, Troy Dow, Laura Gasaway, Daniel Gervais, Terry Illardi, Lydia Loren, Tyler Ochoa, Tony Reese, Jule Sigall, Kate Spelman, Chris Sprigman, and Jeremy Williams. I am confident that none of them would agree with the majority of my conclusions, but our conversations helped me to figure out what I really think.
The copyright statute is old, outmoded, inflexible, and beginning to display the symptoms of multiple systems failure. Congress enacted the current law more than thirty years ago. Most of its essential provisions had been drafted years earlier. Copyright lobbyists wrote the 1976 Copyright Act1 in the course of protracted multilateral negotiations. The statute includes a host of provisions that resolve difficult disputes by adopting detailed specifications. It replaced its predecessor statute’s statements of general principle with particular language rooted in the technology and markets of the 1960s and early 1970s.2 The statute was not well-designed to withstand change, and has aged badly. The details of specific solutions have become irrelevant or obsolete in the face of social, cultural, and technological change.3 Copyright-intensive businesses have come to Congress insisting on new specifications to solve new problems.4 In the ensuing process of inter-industry negotiations to tailor statutory proposals to the quirks and caprice of affected interests, the specifications have attracted a swarm of limitations, qualifications, restrictions, and conditions as a compliant Congress inserted them into the law.5 Today, title 17 of the United States Code is a swollen, barnacle-encrusted collection of incomprehensible prose.6
Historians and copyright lawyers with long memories know that we’ve faced this problem before.7 Copyright law’s confrontation with evolving technology has been a near-constant theme since Congress enacted its first copyright law in 1790.8 More than once in the past, copyright laws havePage 4 grown badly outdated before copyright-affected industries could muster the political influence to persuade Congress to enact new ones. The current law may break down in more extreme ways than in the past, and the law’s language may be many times longer, more detailed, and less comprehensible than in earlier episodes, but this sort of difficulty has plagued copyright history repeatedly.9 When faced with this problem in the nineteenth and twentieth centuries, lawyers for copyright-intensive interests pursued several strategies to enable them to make do. First, copyright lawyers avoided inconvenient statutory language by persuading courts to interpret the words of the statute to mean one thing in one context, and a very different thing in another.10 Second, they negotiated a series of band-aid solutions with other copyright interests in which they agreed to behave as if the statute on the books said what they wished it did.11 Third, they sat down with one another and tried to come up with a revision of the copyright statute that would scratch their respective itches. That process always took much longer than they expected, but, eventually, copyright lobbyists generated the language of a statute that Congress obligingly enacted intoPage 5 law. The resulting statute was, of course, longer, less flexible, and more vulnerable to obsolescence than the one it replaced.12
Copyright insiders, having watched (or participated in) some of the early ameliorative moves this time around, are beginning to make noises suggestive of a new round of statutory overhaul. Groups are meeting privately to generate preferred solutions to copyright law problems.13 Businesses are asking their pet members of Congress to float statutory balloons.14 Various trade associations are trying to position themselves to claim that the items at the top of their wish lists are already well-established under current law.15
There’s some queasiness attached to launching a new copyright overhaul. Copyright revision is lengthy and expensive, even in the best of circumstances. The number of interests affected by copyright is huge, and the complaints those interests have with the current regime are diverse. Overhauling the copyright statute took more than twenty years the last time Congress tried it, and there’s no reason to think it could happen more quickly today. These are not, moreover, the best of circumstances. ThePage 6 copyright bar, once a cozy sewing circle of plaintiffs’ lawyers,16 has grown intensely polarized over the past twenty years, and copyright discourse has become increasingly strident.17 That has nourished an atmosphere of profound distrust, which makes it harder to agree on terms.
Interested parties have reason to be nervous about what might go wrong. Because major copyright legislation typically takes many iterations and many years between introduction and enactment, most copyright lawyers are, at least to some degree, experts in copyright legislative history. Students of past legislation know that in the course of any major copyright revision, new copyright-affected players have popped up and demanded that the law be reshaped to accommodate their needs. In the revision process that culminated in the enactment of the 1909 Copyright Act, for example, the manufacturers of phonographs and phonograph records nearly derailed the entire effort until they were satisfied with their treatment under the statute.18 Multiple attempts to modernize the copyright law during the 1920s and 1930s foundered because new players ASCAP and radio broadcasters could not agree on anything.19 In the revision process that led to the 1976 Act, broadcast television, and then cable television, showed up and demanded special treatment; copyright revision ground to a halt until they got it.20 In the five-year effort that resulted in the Digital Millennium Copyright Act,21 telephone companies and Internet service providers were able to block the enactment of provisions sought by the entertainment and software industries until liability safe-harbor provisions for ISPs were added to the bill.22
The prospect of upstart new copyright interests may be especially scary today because there are millions of ordinary people whose use of YouTube and peer-to-peer file-sharing networks gives them a direct, personal stake in the copyright law.23 Nobody has yet succeeded in mobilizing them into aPage 7 significant political force, but the majority of them are over eighteen, and many of them vote. It’s entirely possible that over the course of a multiyear, highly publicized copyright reform effort, the interests of ordinary voters could end up playing more than a nominal role.24 One can imagine circumstances in which a new awareness on the part of Congress that voters care about copyright could move the law pretty far from where current players would like to see it go.
If I am right that a new cycle of copyright revision is beginning, though, it is only barely beginning. We are currently in the very early, pre-history stages of a revision effort. We are not yet locked in. We can still make choices about the premises and underlying assumptions that will form the basis of the next revision.25
Much of my prior work has chronicled a depressing history of copyright legislation, in which copyright lobbyists engaged in protracted negotiations with one another to arrive at copyright laws that enriched established copyright industries at the expense of both creators and the general public.26 There’s ample reason to anticipate that the next copyright revision will proceed in similar fashion to similar ends. But what if it didn’t? What if we were able to take the opportunity to rethink our copyright system? What sort of copyright law might we craft instead?
In Part I of this Article, I describe some of the problems the current copyright system poses for creators, for intermediaries, and for readers, listeners, and viewers. In Part II, I look at the copyright reform proposals drawing serious attention, and I argue that they fail to address the problems I described in Part I. I then, in Part III, suggest alternative goals for copyright reform, designed to enhance the copyright system’s effectivenessPage 8 and its legitimacy. I argue that wise copyright reform should simplify the law; should make the copyright system more useful for creators and for readers, listeners, and viewers; and should divest intermediaries of excess power and control. Those changes, I suggest, are necessary to enhance the law’s legitimacy. By that rubric, none of the current copyright reform proposals seem like a wise revision. In Part IV, I outline a few specific suggestions for changes that I believe would improve the copyright system’s value for both...