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Jessica Litman on Redesign of Copyright
posted by mpawlo
on Wednesday February 25, @02:14AM
from the interesting-people dept.
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.
# 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
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.
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
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.
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