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Digital Copyright
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.
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.
You can purchase Digital Copyright at Fatbrain.
You can see this now in all its glory in early silent era film.
I was recently looking into finding some early silent era films for which copyright has expired. I figured that since they had fallen into the public domain it would be possible to find copies on the web (although most DivX people are interested in only copying recent releases, I thought there might be a Project Gutenburg equivalent somewhere on the web for people interested in early film). However my search was short lived for a cheap source of copyright free film (although you can purchase DVD of some of the few remaining viable early silent film, for $20.00 a film). Then I thought, what prevents me from purchasing a DVD, and then copying it and setting up my own site (besides the obvious bandwidth costs) or posting DivX copies to newsgroups. Well it seems that the companies who restore the films do everything they can to prevent this. They add music which is still under copyright. They add hand done tinting (ruining the film experience in my opinion) to add creative effort to the work. They release versions of the film still under copyright (a German release of the Cabinet of Dr Caligari, rather than the public domain US version). They also try make the argument that their restoration work adds originality to the work (yes I understand that restoration is important and takes money but does that deserve another 90 year monopoly lease?). Etc...
Not only that, it is difficult to get access to original prints because of their fragility and rarity. Part of the reason for this is that the studios who owned the copyright had no incentive to preserve the work which they copyrighted for posterity. In fact there's more incentive for them to make a "modern" update of the story to "regenerate" their copyright in a new film.
I think that some percentage of the profits made by a copyright should be funnelled back into the preservation of the work for the public (this should only apply to registered copyrights) and again require a copy of the work which is released to the public after the expiration of the copyright. As it is now the sole remaining copies of the work can be locked up in one persons private collection or one studios vault and no one can access it.
Some of the preservation work needed for more recent films is already being done at taxpayer expense. However the parties who own this material (and were not properly taking care of it, or making an effort to restore it before it was unrecoverable) are the ones benefiting (For more info)
Simply they copyright holders in general aren't keeping their end of the bargin by keeping works flowing into the public domain to stimulate the arts and sciences. (This is not to say that we shouldn't hold up the public's end of the bargin and all go download the latest movies and music for free, its just understandable when it happens)
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The 'sausage factory' is one thing--you can always stop eating sausage. If we give away our rights to fair use, though, it seems we could easily lose such common institutions as free libraries--an unarguably Bad prospect...
A month ago on 4/19 I got Jessica Litman, the author of the book & a renowned copyright law professor, to consent to a moderated interview for Slashdot. I then came to this website & submitted it to the Slashdot Gods, only to have it be completely ignored. I took a risk for Slashdot & they made me look like a stupid geek.
Sigh. And I told her that us /.ers were really interested in the subject, too.
The only tool you've got against psychosis is experience.
Current copyright laws are, in my opinion, going to put the 20th century's greatest artistic outpourings into a legally mandated black hole. Most artists and authors have an expectation that their work will immortalize them. Otherwise we wouldn't have such things as the Rock 'n Roll Hall of Fame (as biased and political an organization as it is) or the Grammys, or the Oscars, or any other prizes and awards for great contributions to the field.
The problem with this expectation is that in order for your work to be immortalized, it has to survive beyond the first generation of its fans. Just because the Baby Boomers put down in their book that Bob Dylan was somebody fuckin' great, doesn't mean that I will. And it is my generation that will be responsible for ensuring the longevity of art created by my parents' generation. In order for a work to survive past a generation, copies have to be made. Lots of them. Vinyl albums are incredibly fragile, and are easily scratched by careless children, and left on radiators or in attics and warp. CD's get dropped behind the sofa. Cassette tapes are left on the dashboard and melt. Boo.
Since copying all of these media is now illegal, I won't be making any copies of them. The only entity authorised to copy the media is the record company. They only make copies when they think they'll get a sale. Now, as the generation who popularized the work starts dropping off, sales of the work drop off as well. Fewer copies are made. But the copyright term still stands. Before the copyright expires, virtually every "consumer" of his work will have expired as well. Their collections will be sold at estate sales, thrown in the trash, or left in the attic to decay.
Finally, the copyright expires and people are now free to distribute their own copies of the work. But who cares anymore? The first generation that will be legally able to make free and clear copies of Bob Dylan's work, as I understand it, will be my own grandchildren, who will not be born for another twenty years.
The possibility exists that there will be few private copies after 75 years. The company that owns them may clear them out to make more room in their vault.
Put that in the wayforward machine and imagine any type of bleak orwellian culture you like. The results are in the long-term detrimental to that which most artists crave: their continued adulation by a rapt audience. It is the cheer of the crowd that keeps them going. Knowing that the cheer goes on after their funeral has to be a significant part of what they expect as their legacy. Over-restrictive copyright laws will cut that legacy short, and their life's work will be merely "product," to be disposed of immediately upon consumption.
One day I feel I'm ahead of the wheel / the next it's rolling over me / I can get back on / I can get back on
By opening the cover of this book, you agree to the following license terms: [This is printed on the inside of the front cover, so you already agreed to it.] You do not own the book, you are merely licensed to read it. The publisher may revoke the license and take back the book at any time they think you might have violated the license. You may not copy the book or any portion of it allow anyone else to read the book or any portion of it, nor read it or any portion of it aloud. You may not sell the book without consent of the publisher. You may only read the book using a lamp approved by the publisher. When such lamps are withdrawn from the market, you may not read the book, even if the copyright has expired.
Of course, this won't happen with printed matter. A very long time ago some publisher put small piece of that "license" on the flyleaf of a book (just the part about re-selling), and sued some used book store; the Supreme Court threw that out, and formulated the "first sale" doctrine, that is, when you buy a book you own it. We merely have to convince them that digital publications are no different... Meanwhile, I would suggest boycotting all products that come with unreasonable restrictions, and making darn sure the store manager understands why you aren't buying.
I have debated this hot topic on the Napster Forum at great length, with people ranging from typical ranters to a small record label owner.
The biggest issue I have is with the duration of copyright. Originally set to last 14 to 28 years from date of creation, it now stands as 95 years from the death of the copyright owner. The latest lengthening (the Sonny Bono Act) might have to do with strong lobbying from Disney, as Mickey Mouse would have lost its copyright in 2004. And to extend it again, 20 years at a time only takes a mere act of Congress.
On one hand, I'd like to see creators get just rewards for their work. But I disagree with a near-eternal guarantee, that might stifle creation in the future because current creative minds can rest on their laurels. In other words, they can stop working and continue to enjoy a revenue stream, while I need to keep working to get my next paycheck.