Toward a “New Deal” for Copyright in the Information Age

Jessica Litman believes the public needs a very good copyright lawyer, and if I have not mistaken her intentions, she is volunteering for the job (pp. 70-73). A century of Congressional deference to industry-negotiated compromises has produced, she argues, a copyright law that is both incomprehensible and unfair. This incomprehensibility might be tolerable if copyright law governed only commercial relations among industry participants, all of whom have copyright counsel. To the extent that copyright law applies to the conduct of ordinary persons, its incomprehensibility presents serious difficulties. Moreover, to the extent that copyright law makes illegal many ordinary activities of individuals5 – for example, making private copies of music for oneself or to share with a friend or forwarding articles to friends via the Internet – it has become unfair as well (pp. 19, 28). As the public’s copyright lawyer, Jessica Litman advises us not to accept the current deal (p. 20). In Digital Copyright, she outlines a framework for a copyright law that would be a new and better deal for the public and would be short, comprehensible, and normative in character (pp. 180-84). While Litman does not advocate lawlessness until the new deal has been adopted, she makes clear that she does not object to widespread noncompliance with copyright law in the meantime. In fact, the public’s noncompliance with strict copyright rules fuels Litman’s hopes for eventual change (p. 194). People do not obey laws they don’t believe in, she argues, and governments find it difficult to enforce laws that lack public support (p. 112). Therefore, if something has to change, Litman believes it will be copyright law, not the behavior of the public. Digital Copyright is Litman’s paean to a future in which copyright will once again be a component of the nation’s enlightened information policy. As will become evident (if it isn’t already), Litman’s perspective on copyright law and my own are quite similar. Yet Litman’s work is distinctive in several respects: in her informed historical perspective on copyright law and its legislative policy; her remarkable ability to translate complicated copyright concepts and their implications into plain English; her willingness to study, understand, and take seriously what ordinary people think copyright law means; and her creativity in formulating alternatives to the present copyright quagmire.6 Perhaps it is too much to ask that Digital Copyright also provide concrete strategies for transforming the copyright legislative process so that the ,new deal of copyright would become feasible. It is difficult, however, to come away from this book without wishing Litman had the ingenuity to be the public’s chief strategist for achieving the new deal as well.