Digital Copyright

Jessica Litman

Prometheus Books 2001
A book review by Danny Yee © 2001
In Digital Copyright Jessica Litman has produced a clear and concise introduction to United States copyright law, covering its history and its interaction with the new technologies of the Internet. Copyright has overtaken censorship as the hottest topic online, but it is often poorly understood — as Litman puts it, "copyright law questions can make delightful cocktail-party small talk, but copyright law answers tend to make eyes glaze over everywhere". So Digital Copyright, by a law professor highly regarded in the area, is an important and timely publication.

Litman's approach is non-technical, with the more involved details and the references to statute and caselaw in endnotes to each chapter. There is also a nice separation between chapters dealing with basic ideas, which are largely relevant world-wide, and others covering the details of lawmaking, which could be skipped by those less interested in the US political process. Litman's analysis may be objective, but she is certainly not dispassionate — she states her own concerns up front:

"If current trends continue unabated ... we are likely to experience a violent collision between our expectations of freedom of expression and the enhanced copyright law. I wish I could be confident that copyright law would be the loser in such a fight."

An opening chapter "Copyright Basics" is followed by "The Art of Making Copyright Laws", which is pretty much a summary of the book (and which is available online). The longest chapter, "Copyright and Compromise", then recounts the history of copyright lawmaking from the beginning of the twentieth century down to the 1976 copyright statute. A long and complicated series of negotiations and compromises between the various stakeholders produced a complex law granting broad rights to copyright holders, with an extensive range of narrow exceptions designed to appease vested interests.

Litman breaks here for a thought experiment — if a member of the general public brought the 1976 act to a copyright lawyer, should she recommend it to them? The answer is "no": none of the lawyers involved in drafting it were there to represent the public and the resulting legislation shows it. Litman also looks at the effects of changing metaphors. Copyright has changed from being a "bargain" between public and author to a "a system of economic incentives". There has been a piecemeal repeal of the "first sale" doctrine, which allowed the purchaser of a work to sell, loan, lease, or display it without the copyright owner's permission. And "fair use" privileges have been narrowed, but "piracy" expanded to include any unlicensed use, not just large-scale commercial duplication.

In "Copyright Lawyers Set Out to Colonize Cyberspace" Litman returns to the lawmaking process. With the "Information Superhighway" or "National Information Infrastructure" (NII) buzzwords in the early nineties, a working group was set up under Patent Commissioner Bruce Lehman to look at related intellectual property issues. The Lehman group's Green (1994) and White (1995) papers proposed that loading something into RAM require the copyright owner's express permission and that transmissions be deemed public performances or displays — and employed the familiar device of arguing that these rights were already granted by existing law.

One of the arguments of the Lehman working group was that full exploitation of the NII could only happen with strong copyright protection. In fact, Litman argues, the range of quality material available on the Internet clearly demonstrates — and already demonstrated in 1994 — that other incentives exist for the production and publication of content. And we risk limiting the potential of new forms — what Litman calls "unbooks" — if we insist on applying law designed for old ones.

The Lehman working group report also contained a whole section on education, urging a "just say yes to licensing" advertising and reeducation campaign. But popular failure to understand copyright law is not new: for example,

"most people seem to believe that the copyright law draws a distinction between exploitation of a work for commercial purposes and consumption of a work for private purposes ... despite the fact that that's never been the law, and despite eighty-five years of concerted educational efforts".
If we want to impose the same set of rules on film studios and high school students, Litman argues that we need to pay some attention to how the latter think — and what they want.

Another long chapter ("The Bargaining Table") then details the machinations that led to the 1998 Digital Millenium Copyright Act (DMCA). Fought over by vested interests, bounced between House and Senate and committees competing for jurisdiction, and even tied up with international treaties and the World Intellectual Property Organisation, this ended up

"long, internally inconsistent, difficult even for copyright experts to parse and harder still to explain. More importantly, it seeks for the first time to impose liability on ordinary citizens for violation of provisions that they have no reason to suspect are part of the law, and to make noncommercial and noninfringing behavior illegal on the theory that that will help to prevent piracy."
Litman's take on the politics involved is pretty cynical — she suggests that some committee members were more concerned about ensuring lucrative campaign contributions from the copyright industries than anything else.

Unsurprisingly, the DMCA failed to resolve the issues raised by new technologies. Litman continues with an account of the "copyright wars" of the last few years — over mp3s, Napster, DeCSS, and various systems linking television and the Internet. And she describes the shift towards technologically enforced access controls backed up by anticircumvention legislation, including bans on "circumvention devices". (Although it covers quite recent events for a printed volume — down to mid-2000 — Digital Copyright shows no signs of being rushed or hastily put together.)

The last two chapters offer some suggestions for the future. The first imagines how we (or a hypothetical benevolent despot) might go about revising copyright law for the information age.

"We can continue to write copyright laws that only copyright lawyers can decipher, and accept that only commercial and institutional actors will be likely to comply with them, or we can contrive a legal structure that ordinary individuals can learn, understand, and regard as fair."
There are more radical proposals around, but Litman's suggestion is to recast copyright as an exclusive right of commercial exploitation rather than of reproduction; she touches on some of the advantages and disadvantages of such an approach. In any event, public rights — to read and to cite, and to access public domain information within protected works — would need to be made explicit, perhaps along with a Berne convention approach to protecting authorial integrity. Of course, as the earlier chapters on lawmaking make clear, such an approach is unlikely. In the absence of a benevolent despot or an overhaul of the legislative process, Litman suggests that copyright stakeholders may eventually come around:
"If a law is bad enough, even its proponents might be willing to abandon it in favor of a different law that seems more legitimate to the people it is intended to command."

The implications of Litman's analysis may be unsettling for activists. She is clearly not optimistic about the effectiveness of political lobbying (though there may be more hope for that outside the US). And the "civil disobedience" she describes — without using that term — is the unplanned disobedience of ordinary individuals, not the organised action of an activist cadre. Perhaps the most important thing that can be done is to educate politicians and citizens about the issues — a task in which Digital Copyright will be most useful.

May 2001

External links:
- buy from or
- information from Jessica Litman
Related reviews:
- books about the Internet
- books about civil liberties
- books about law
- other "best book" selections
%T Digital Copyright
%A Litman, Jessica
%I Prometheus Books
%D 2001
%O hardcover, glossary, index
%G ISBN 1573928895
%P 208pp