Author: Jessica Litman
Publisher: Prometheus Books
Publication Year: 2001 ISBN: 1-57392-889-5

The Scenario

Jessica Litman is a professor of law at Wayne State University (in Detroit), and an advocate of civil liberties along the lines of Lawrence Lessig. She has such a long-standing record of fighting copyright legislation that it is suprising that this is her first book on the subject, but it's worth the wait. This book, combined with Lessig's new work, The Future of Ideas (review forthcoming) stand as a double wallop in the eye of current copyright legislation. Litman's central thesis is that copyright legislation is created not through enlightened discussion of public interest, but by assembling fat cats into a room and letting them dictate how much of the pie they want.

Starting with a basic review of copyright laws from the framing of the constitution, Litman pauses in 1909 when the Congress passed a series of laws that still bind copyright use in the United States. The method of determining appropriate copyright law was to gather together at a series of conferences people who had an interest in copyright. Publishers, composers, theater owners, authors, libraries and so forth. Motion picture and phonograph industries were too new to be represented, but that changed in 1912 when the first copyright suit against a movie was brought. Amendments were made over the next 30 years to represent the interests of other large stakeholders, but for the most part the pie had been divided.

The 1909 model of copyright law was totally different from what eventually became conceived of as copyright. In the earlier model, copyright was a quid pro quo between an author and the people. The people exchanged a limited duration of exclusive control for immediate public dissemination of the work and the eventual placement of the entire work into the public domain. Nobody back then thought that content creators would cease their activities if they were not recompensed. The law was about control, and did not think of intellectual content as property. The property model was specifically created by major copyright holders in the late 70's, early 80's to maximize profits. The Copyright Act of 1976 was the first major revision of the 1909 law, and recast the copyright law under this property model.

In all of these negotiations, the public is not represented. Members of Congress would assuredly say *they* represent the interests of the public, which is of course milk-out-the-nose funny. Litman, bitter from the battles, laughs off the attempts of nonprofits and advocacy groups to affect policy decisions, having seen the struggle from the inside. In a series of absolutely great narratives, she shows how the Lehman Working Group decided the groundwork of what was to become the DMCA despite efforts to bring public interest to the forefront. The Digital Freedom Coalition, of which Litman was a member, was summarily brushed aside. Library and consumer electronic advocates were given a cookie and told to relax. Even the House Commerce Committee was ignored by players like the RIAA and MPAA as they counted on their Judicial Committee buddies to carry the vote.

Litman argues that this "smokey room" method of devising copyright laws has left the public behind. It is almost impossible for a layperson to understand the current complexities of copyright law. Most people don't understand what they are, or are not allowed to do, and would not believe the limitations on their basic freedoms if told. Really, major copyright holders have not cared about private use until recently. The advent of Internet publishing scared the bejeesus out of the major copyright holders, and now the public is looking in a puzzled way at the thicket of copyright laws that have come to exist. People do not understand how the DMCA currently affects their rights of fair use, first sale doctrine, or other intricacies. Really, only copyright lawyers understand the myriad distinctions.

The author wants a total revision of copyright law with the following characteristics:

  1. preserve some incentives for copyright holders,
  2. makes sense from the viewpoint of individuals,
  3. are easy to learn and
  4. seem sensible and just to the people we are asking to obey them.
Litman carefully does *not* say that the only avenue we have right now is a form of civil disobediance. We violate copyright laws every day. Part of the reason we do this is because the law does not make sense to us, according to Litman. Continued violations may convince lawmakers that we do not intend to follow nonsensical laws.

What's Good?

This book is surprisingly readable, given that it is written by a lawyer. Litman has an idea, that the public has been left out of the creation of copyright law, and hammers that point home. She does this through engaging stories about stupid case laws, sordid political backroom negotiations, hopeless advocates and incestuous corporate dealings. Her telling of the DMCA reads like a novel at times, which is a blessing after other dry accounts.

This is a solid introduction to some of the basics of copyright law, how it gets formed, and why it is important for the average citizen. By showing the history of copyright law, how it changed, and the nefarious choices behind those changes, Litman paints both a bleak picture on the ability of those of us without media companies to affect policy and a call to arms to reclaim our rights as a nation.

What's Bad?

One is left wondering who Litman wrote this book for? It certainly was not for tenure at a law school. For a book on legal theory, it is peculiarly lacking research on legal theory. Now, that makes it much more accessible for a common audience, but is not likely to gain much attention in a legal context. She also does not back up her claims very much with evidence from behavioral or economic research, which would seem necessary for some of the claims she makes. At the very least, the footnotes should have made more reference to the huge body of research that is available on the subject.

The book is a collection of papers, cohesive enough in their formulation, but still oddly arranged at some points. For instance, some chapters are only five pages long, which takes chutzpah. She tends to be a little repetitive about her central theme. No, she tends to be really repetitive on her theme, though this serves a purpose of it's own. Also, this is an obviously political book. Litman is a liberal democrat, and has vitriole to spare for some of her villains in the book. It's odd that the copyright issue can bring together an uber-liberal like Litman and a conservative diva like Orrin Hatch, but it's a complex issue.

So What's In It For Me?

Two books came out this year on digital copyright, this one and Lessig's. What Litman's book has to offer is a strong introduction to the creation of copyright law, and a reasonable, if highly subjective, view of the legislative process. Many of us are interested in the copyright issue, and have spent a lot of time sifting through the meaning of the DMCA. Litman is offering a shortcut for those who have been more peripherally interested, as well as interesting legal knowledge for those who have not been able to decipher the legal code

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