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F & F


Jessica Litman on Redesign of Copyright
posted by mpawlo on Wednesday February 25, @02:14AM
from the interesting-people dept.
Copyright What would copyright scholar Jessica Litman do, should she find a genie in a bottle and be able to redesign copyright law?

Find out in this exclusive Greplaw interview with the professor of Wayne State University. Also, we have picked Litman's brain on subjects as the CAN-Spam Act, Napster and the UDRP.

# Who is Jessica Litman?

I like to think of myself as Harry Litman's older sister.

# Maybe I should know, but who is Harry Litman?

He's my younger brother. He's currently a visiting Professor at Rutgers-Camden Law School.

Assorted links:







# Hmm... so I should have known... So, professor Jessica Litman of Wayne State University, in your book Digital Copyright of 2001 you claim that consumers' interests were disregarded when the Digital Millenium Copyright Act was designed. Do you think that your prediction still stands, analyzing how the DMCA has been used in practice?

Things have turned out somewhat worse for consumers than I expected them to. Before the DMCA, the copyright law didn't have a lot to say about the behavior of consumers reading, viewing and listening to works. Because the DMCA gives copyright owners a cause of action for consumer circumvention of access-control technology, copyright owners have concluded that they have (and should have) a right to control who gains access to their works under what circumstances. Instead of making copyright owners more willing to release their works online in digital formats, they have become even more reluctant to allow consumers access to digital copies unless they can control what consumers do with those copies. Although the access-control provisions of the DMCA were intended to protect copyright owners from people who gained unauthorized initial access (the metaphorical "burglars" who break into one's house to steal one's books), the provisions have been enforced to prevent licensed users from making unlicensed uses of works. Meanwhile, in the "broadcast flag" campaign, copyright owners have sought to extend their control over when and under what circumstances consumers can see their works.

Opponents of the DMCA managed to get a provision included in the bill to ameliorate the squeeze on fair use; it called for a triennial rulemaking by the Copyright Office to establish temporary exemptions from the anti-circumvention provisions. In earlier eras, the Copyright Office has seen its mission as representing the public interest on copyright matters. The current Copyright Office General Counsel, though, appears to view his job as protecting copyright owners from academics, librarians, archivists and computer scientists. He has insisted (despite contrary language in the statute and evidence in the legislative history) that the law prohibits the recognition of the sort of exemptions that might help to preserve fair use.

Moreover, the once unthinkable idea that copyright owners have and should have control over how and when consumers read, view and listen to their works has encouraged the idea that filing lawsuits against 1500 ordinary consumers is the appropriate response to widespread noncommercial unlicensed exchange of copies of works.

# Why should Napster not have been shut down?

Napster itself didn't violate the copyright law: it did not reproduce, adapt, distribute, perform or display any files. No music files passed through Napster's servers. Napster functioned as what the statute calls an "information location tool" -- it maintained a dynamic index of the files in the share directories on all of the hard disks of individuals connected to Napster, enabled people to search for those files, and facilitated a computer-to-computer connection allowing the search to copy a file directly from the hard disk of another computer connected to Napster.

Under the Supreme Court's opinion in Sony v. Universal Studios, Napster shouldn't have been held liable as a contributory infringer unless it were not capable of substantial non-infringing uses, and it seems clear to me that it was capable of substantial non-infringing uses.

In addition, I believe (although I've not been able to find another copyright professor who agrees with me) that section 1008 of the copyright law, which bars copyright infringement suits over consumers' making of noncommercial copies of recorded music under particular circumstances, should have been interpreted to cover peer-to-peer file sharing.

# What do you make of "piracy" as the word describing copyright infringement?

It's a clever tactic, and it seems to be working. It would help if we came up with a punchier phrase to describe unlicensed-but-legal uses.

# Which are the three most important trends in copyright legislation today?

The most important and in my view scariest trend is simply a case of skewed priorities. In order to ensure that copyright owners can exercise plenary control over consumers' uses of their works, we've already been willing to sacrifice important chunks of our freedom and our privacy.

# Should they be opposed? How?

I think the best way to oppose what Professor James Boyle has called the "copyright land grab" is relentless discussion. The more people talk with each other about the copyright law, the less tolerable it is that the law doesn't make any sense. Congress is only going to wean itself from a century-long habit of copyright lawmaking controlled by copyright lobbyists if it becomes clear to our Senators and Representatives that their constituents are paying attention.

# If you find a genie in a bottle and therefore could change global copyright into the Litman copyright regime - how would you design it?

I explore this a little bit in Digital Copyright. I suggest that if copyright law is going to apply to consumers as well as publishers and record labels, we need to replace the current long incomprehensible law with something short and intuitive. My suggestion is to junk the current structure entirely and recast copyright as an exclusive right of commercial exploitation. Copyright owners would have the sole right to exploit their works commercially or authorize others to do so, but would not be entitled to control noncommercial uses.

# Will the CAN SPAM Act mean more or less spam in the U.S.?

Certainly not less. The standard joke about the CAN SPAM Act is that, thanks to the Act, spammers CAN spam.

# Why?

The major impetus for the Act was apparently to preempt tougher anti-spam laws in states like Michigan and California.

# You are also an expert on trademarks. What do you make of the UDRP?

Professor Harold Korn, who taught me civil procedure and evidence, was fond of drawing a distinction between disputes that needed to be settled correctly and those that needed to be settled quickly. In the vast majority of domain name disputes, it is more important to settle the question fast than it is to get it right: the domain name registrant can choose another name for its endeavor, but that's a lot easier if it can do it before it builds up a lot of goodwill. For those disputes, a UDRP-like procedure seems like a good solution. I have significant quarrels with the substance and procedure of the UDRP we have, and a bunch of the UDRP decisions seem to me to get the law wrong, but if we got rid of it, we would soon want to replace it with a similar device.

# Should not domain name disputes be tested in court instead of in a WIPO arbitration?

If either the trademark owner or the domain name registrant wants to go to court, they should be, and at least in the U.S., they can be. In the vast majority of cases, neither party wants or can afford to go to court.

# Does trademarks stifle free speech?

Sometimes, especially in the 8th Circuit.

# In the 8th Circuit... hmmm, well then, how should trademarks be dealt with on the Internet?

Trademarks, like other forms of intellectual property, have been showing relentless expansion of late, and I hope the pendulum will reverse its swing soon. If courts can remember that trademark law doesn't give the trademark owner the exclusive right to use a word, they should be able to resist trademark owners' pleas to be awarded the functional equivalent of the exclusive right to use the word on the Internet. Court's haven't been doing all that badly, although decisions like the recent 9th Circuit opinion in Playboy v. Netscape doesn't show the courts at their best.

# You have discontinued your 'new developments in cyberlaw' after an amazing seven years, and instead you link to... Greplaw! What is that about and why quit?

New Developments began back in 1996 as a web page for the students in my Law in Cyberspace seminar on which I could announce new developments relevant to the seminar. (Early entries included things like "For frequently updated accounts of the litigation challenging the constitutionality of the Communications Decency Act, look at the Citizens Internet Empowerment Coalition home page," and the text of pending bills.) As Internet law got more complicated, the page got more interesting. I was surprised when I discovered that people from the rest of the world were looking in. Since I'm following Internet legal news anyway, it seemed to make sense to post entires to the page year-round. It takes time, though, since I'm a one-law-professor operation. I have no staff or research assistance and I still write my HTML code by hand. In the last few years, a number of excellent Internet law blogs have sprung up, including Greplaw (also including LawMeme, Packets, and Michael Geist's Internet Law News), so I decided that New Developments should return to its original function as a resource for my seminar students.

# As long as you link Greplaw, I guess we can learn to live with it. If you can not have breakfast with Batman, which cartoon would serve your coffee?

Tough question. My first cartoon love was Tom Terrific, but nobody would call him a sparkling conversationalist.

Jessica Litman was interviewed by Mikael Pawlo.

Copyright Extension Revisited | EFF Proposes Flet Fee for P2P  >


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Related Links
  • http://www.wws.princeton.edu/e vents/pressreleases/litman.htm l
  • http://www.forensics.duq.edu/a dvisory/members/litman.html
  • http://www.whistleblowers.com/ HTML/BODY/bio_litman.htm
  • http://www.county.allegheny.pa .us/hazard/chair.asp
  • http://www.kidsvoiceorg.com/pr ofiles/attorneys.htm#Harry_Lit man
  • http://www.imdb.com/name/nm144 9102/
  • Playboy v. Netscape
  • 'new developments in cyberlaw'
  • Citizens Internet Empowerment Coalition home page
  • LawMeme
  • Packets
  • Internet Law News
  • have breakfast with Batman
  • Tom Terrific
  • Mikael Pawlo
  • More on Copyright
  • Also by mpawlo
  • This discussion has been archived. No new comments can be posted.
    Jessica Litman on Redesign of Copyright | Login/Create an Account | Top | 1 comments | Search Discussion
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Junk copyright (Score:1)
    by Nicholas on Thursday February 26, @03:07AM (#1483)
    User #969 Info | http://www.commonrights.com/
    "My suggestion is to junk the current structure entirely and recast copyright as an exclusive right of commercial exploitation."

    Thank you, Jessica Litman, for putting it so succinctly. This is exactly the intuitive response that I call for in Common Rights [commonrights.com].
    [ Parent ]

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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