Digital Copyright

People who love sausage and respect the law should never watch either one being made. Law professor and copyright expert Jessica Litman takes a hard look at the process which makes copyright law, and most readers will likely finish her new book, Digital Copyright, with their respect for the law substantially lessened. This is the book for everyone who has ever gotten fed up with IANAL posts and wanted answers that were a bit more informed, everyone who's gotten tired of soundbite analysis of Napster and overheated mailing list discussions. If you're looking for one book to help you understand the Digital Millennium Copyright Act and the past and future of copyright law, this is it.

Digital Copyright
author	Jessica Litman
pages	208
publisher	Prometheus Books
rating	10/10
reviewer	Michael Sims
ISBN	1-57392-889-5
summary	how copyright law is like sausage-making

For a free introduction to Professor Litman's work, you may want to see her webpage, taking special note of the various articles and papers linked at the bottom. Several of her previous articles have been revised into chapters of Digital Copyright, so if you don't find them interesting, the book isn't likely to interest you (though the book is written for a slightly more general audience than the papers).

Almost every discussion of copyright on the web degenerates into name-calling between a faction that insists "copyright is property - you're STEALING!" and a faction that insists "copyright is a bargain between the public and producers, it exists solely to promote the progress of science and the arts, and the producers are trying to gouge the public within an inch of its life". Litman's book will show you the roots of those two viewpoints, the heavy propaganda effort by the copyright industry that has made that shift in law from the second to the first and is trying to make that shift in public perception, and you'll be one up on the average copyright debater.

She goes into excruciating, fascinating, absorbing detail about the process that produced current copyright law and is highly likely to produce future copyright law - the bribes to Congress, the back-room deals, the slimy public relations tactics, the elected officials who don't want to spend the time to learn about a tangential, unimportant issue like copyright. The history of copyright law shows that this is not a new issue - these same battles have been fought over each new medium of storing or transmitting information, and Litman mentions, at least briefly, each of those battles. With each new medium came an expansion of copyright law to cover that medium and a narrowing of the rights of readers/viewers/listeners, until we've reached the Digital Millennium Copyright Act, which arguably allows publishers cradle to grave control of every copyrighted work they produce.

One of the major themes expressed in the book is the disconnect between how the average layman supposes that copyright law is and how it actually works. In general, people who haven't read copyright law have many misunderstandings about it, and often refuse to accept the real law when it is presented, because it doesn't make a lot of sense and they have a fundamental belief that law should make sense. Indeed, the odds are (at least in my experience) that any individual random person asserting facts about copyright law is dead wrong.

When you have laws that have been written and revised for one hundred years with no significant input from the public, only people who want to maximize their profits from the resulting law, there's going to be a disconnect.

And that's the "sausage" aspect of this book. Most people respect the law, even copyright law, even if they don't understand it (they obey what they think the law is, or what they think it should be). But after reading this book, I think most people won't respect copyright law any more - they'll realize that copyright law is just a method for a very few companies and industries to maximize their profits at the public's expense, and they'll simply cease to respect it. I'm not at all certain this is a bad thing. A little less respect for authority would probably do American society some good. But be aware of the consequences: if you want your daughter to grow up thinking that making an MP3 from a CD you own is theft, don't use this book for bedtime reading. It will warp impressionable minds.

Chapter 1, Copyright Basics, is just as you'd expect: an overview of copyright law. It's not deep, but the rest of the book does not require in-depth knowledge of copyright law. It's a book written for a popular audience, with enough footnoted references that scholars won't be disppointed or short-changed.

Chapter 2 is available online (so is the introduction). Litman maps out where she intends to go in chapter 2, so it's really the best sales pitch for the book: read it, and you'll either be hooked or not.

Chapter 3 covers compromise - the compromise between copyright interests that creates modern copyright law. When you realize that Congress literally and explicitly (and apparently, shamelessly) rubber-stamps the law written from start to finish by corporate copyright interests, you may feel the bile rise in your throat.

Chapter 4 is a short thought experiment: if you were a lawyer representing the public, and the "bargain" of the 1976 copyright statute was presented to you, would you accept it?

Chapter 5 is an important chapter for advocacy efforts. It covers metaphors, and the important role they play in debate. We've seen this play out in recent news as perjorative terms like "pirate" are applied to organizations like 2600, which, after all, is not even accused of copying a single thing unlawfully, while the New York Times and other large publishers, which freely admit that they copied tens of thousands of articles which they had no rights to in order to sell them for a profit, are called pirates by no one (one newspaper article, in the Christian Science Monitor, mentioned that the individual writers describe this as "cyber-piracy" - that's the closest I got to an adverse characterization of the publishers' position). This "piracy gap" illustrates perfectly Litman's point - controlling the metaphor for any given debate or conflict is of utmost importance.

Chapter 6 covers the collision between copyright lawyers and computers/the internet. Imagine: a world where every single use of any piece of information involved making a copy, if only in a computer's RAM. Suddenly, the right to "make copies", which once covered only the initial production of copyrighted materials, is invoked with every single usage of a material. And instead of revising the law to have roughly the same effect as it used to, copyright interests seized on revising the law in favor of its letter, not its spirit. (Though Litman doesn't mention Lessig here, she's making exactly the same argument that Lessig is in his book Code and Other Laws of Cyberspace , and I wish it was expanded just a bit.) The chapter generally covers the efforts in the early 1990's that will lead up to the Digital Millennium Copyright Act.

Chapter 7, Creation and Incentives, examines what sort of incentives are actually needed to get people to create copyrighted works. In the face of all evidence, the copyright industry argues that massive incentives are needed. There's a great hypothetical, which I won't ruin for you here, that looks at the copyright incentives needed in two major industries today.

Chapter 8 is titled "Just Say Yes to Licensing!". I don't think I really need to discuss the subject matter here, do I? She points out that the paper which led to the DMCA recommends massive citizen re-education programs - since the law didn't fit with public perceptions, clearly the public's perceptions were at fault, not the law.

Chapter 9 covers the DMCA's passage - each little bargain hammered out by one copyright interest or another, all at the public's expense.

Chapters 10 and 11 cover Napster, DeCSS, and similar areas that regular slashdot readers will be familiar with.

The final two chapters examine the requirements for a digital copyright law that will comport with the expectations of Americans - whose expectations include items like being able to read a work they've published on a device of their own choosing without violating copyright law - and yet still provide an incentive to authors. Although there is nothing wrong with the solution Litman proposes, one gets the impression that it is a sort of pro forma exercise, that she knows there is no realistic hope of her solution being implemented.

Overall, the work is both a strong piece of scholarship (Litman has been studying this for years, and it shows in every footnote) and solid read. Readers on a budget can get the flavor and most of the arguments by reading her papers online, but the work as a coherent whole is solid addition to the library of anyone who cares about copyright issues. Highly recommended.

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I'd like to also mention another book about the DMCA, one that I'm not going to do a full review on. Marcia Wilbur has a self-published book titled DMCA, which can be located through various booksellers. I received a copy from the author, and it is about as different from Digital Copyright as night is from day. DMCA draws very strongly from online debates -- it's fast-paced, rushed, very much a persuasive work rather than an informative, scholarly one, and could use some serious copy-editing. Nevertheless, it's an interesting read, and the only paper work I've seen to date that accurately captures the flavor of online discussions about the DMCA.

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You can purchase Digital Copyright at Fatbrain.