<nettime> Digital Copyright: Interview with Jessica Litman

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Law Professor Sparks a New Debate Over Flaws in Digital-Copyright Act
By ANDREA L. FOSTER ,
Chronicle of Higher Education, October 12, 2001
http://chronicle.com/free/2001/10/2001101202t.htm

Jessica Litman, a Wayne State University law professor who is an expert on
copyright law, has prompted renewed debate among scholars about the Digital
Millennium Copyright Act with her book Digital Copyright (Prometheus Books,
2001). In the book, she argues that copyright holders and owners crafted
the law, and that consumers' interests were ignored.

Q. Your book was released earlier this year. Do you think you need to
update the conclusions or arguments?

A. It's a moving target. ... A year ago, Napster had 40 million users. A
year ago, although the recording and motion-picture industries were suing a
variety of online music and other nascent businesses ... Napster [and]
MP3.com still had their heads above water. ... And a year ago neither the
Edward Felten nor the Dmitri Sklyarov situation, both of which involved
using the Digital Millennium Copyright Act to stop someone from telling
people about their lawful activity, had happened.

A year ago, Sen. [Ernest] Hollings [a South Carolina Democrat] had not yet
released a draft of a bill that he says he plans to introduce to, in
essence, require copy protection to be installed in every computer in the
land. So in many ways, I think the possibilities for resolving the
copyright wars in [ways] that aren't damaging to American scholarship, to
American research, to American technology are somewhat reduced, just by the
vehemence with which this has been pursued. In addition, I think the
argument that the Digital Millennium Copyright Act anti-circumvention
provisions are unconstitutional is somewhat stronger than it was a year
ago.

I would expect the courts that are hearing these cases to [view them]
subjected to a limiting construction, or to hold it unconstitutional. And
that, from the view of the proponents of the DMCA, is self-inflicted
damage. And it is the overreaching in enforcement that has caused this law
to be perceived as illegitimate by large numbers of people, so what we've
seen is that the recording industry and motion-picture industry have
squandered their most awesome asset, which is the high moral ground.
Everybody wants people who create copyright-protected works to get paid ...
and that doesn't mean everybody supports controlling who talks about
weaknesses in encryption technology.

Q. Groups representing colleges have been largely silent on the issue of
the Digital Millennium Copyright Act. Why do you think that is, and do you
think they need to be more involved?

A. This affects everybody at this point. It certainly is going to affect
research. It will affect universities in their pocketbooks. Universities
have many fights to fight. I can understand why they have decided this
isn't one of theirs, that they need to fight for funding, and so forth. I
think they are going to discover that as copyright laws get increasingly
Draconian, it will indeed interfere with their core research mission and
their core educational mission.

But if it were only a case of whether or not college professors could make
course packs, I'd agree with the universities that that is not worth making
your first priority. I think instead what we're discovering is that part of
the battle is about who can do what research, who can publish the research,
all sorts of things that I think are important to universities as a matter
of principle. And I expect if the Digital Millennium Copyright Act
continues to be read broadly that it is something that universities are
going to take seriously.

Q. Do you support the effort by Rep. Rick Boucher [a Virginia Democrat] to
revise the Digital Millennium Copyright Act?

A. I don't see anything in the process yet that persuades me that
Congressman Boucher will be able to get a bill through if the
copyright-affected industries don't support it. But I do think that it's a
very good thing that the discussion is going to take place, and that
Congress is going to have to revisit this issue.

At the time, a number of members of Congress said, Well, all of these
concerns libraries, for example, are raising are hypothetical, and unless
you can show us that real damage is being done, I don't see why we should
listen. There's a great deal more ammunition three years later than there
was then. And I hope that there are hearings on Representative Boucher's
bill so that some of that ammunition can get aired.

Q. What do you think the solution is to the problem you lay out of fair use
being undermined and consumers' views being ignored in copyright
legislation?

A. This is an intractable problem. It's had a hundred years to build. And
it's going to take some work. ... One of the wonderful things that Napster
did ... was that it made 70 million people aware of the fact that there's a
copyright law out there and that they had opinions on what it should say.

One of the things that happened when Professor Felten was threatened for
publishing his paper is that academics realized that this isn't just about
record pirates, it's about all of us. And the fact that the journalists are
covering this makes it a set of issues that's more salient to the public.
At that point, I think, members of Congress may realize that allowing the
affected industries to negotiate the substance of legislation in back rooms
is no longer a winning political strategy.

Q. Why are you not optimistic about the effectiveness of political lobbying
to change the copyright laws?

A. I think we have a securely entrenched structural situation. I think for
the last 50 years it's been absolutely clear that the major players in the
entertainment and information industries have enough political clout to
block the enactment of a bill that they find unacceptable. ... That has
meant, as a practical matter, that it's not possible to get copyright
legislation enacted in this country unless every single commercial interest
affected by the law is better off than it is under the current regime.

Now, I actually think that a law can be imagined which would leave them all
better off. I think that the effort on the part of the current market
leaders to assert complete control over uses of their works, from the time
they leave the factory on through a consumer's household, are doomed to
failure. I don't think consumers are going to find that acceptable.

And I don't think it's going to be possible to enforce it. ... I think if
we could concentrate on making sure that the people who create and invest
in works of authorship get paid, rather than [that] they get control, that
it really is a situation in which everyone is better off. But I think it is
going to take at least until the music and motion-picture industries stop
being terrified of the Internet that it's going to be possible to broach
that approach as an alternative.

Q. You write in your book, "If current trends continue unabated ... we are
likely to experience a violent collision between our expectations of
freedom of expression and the enhanced copyright law." Do you think this
collision will occur, and if so, when?

A. Those of us who support intellectual property but believe the extent of
protection has gotten way out of hand have been arguing for some time that
the details are important. We're now seeing people [getting] tripped up by
the details. We're seeing scientists refusing to come to academic
conferences in the United States because they're afraid of the DMCA.

Increasingly, if we indeed find inter-suing and courts issuing injunctions
against linking, against T-shirts, against telling people about the
weaknesses in encryption, against selling or making some software that
enables people to read books that are theirs, then it's all going to start
feeling like the thought police. ...

I think the software industry has some appreciation that there are limits
to what the public is willing to settle for. But I don't think the
motion-picture and music industries have run up against that. They don't
have the software industry's history with copy protection.

Q. Why do you suggest to consumers that widespread noncompliance with the
Digital Millennium Copyright Act might be beneficial?

A. ... People don't obey laws that they don't understand, that they don't
believe in. ... So I think if we have egregious laws on the books, and I
believe the Digital Millennium Copyright Act is one such, that they're not
going to work, that they're not going to work because people aren't going
to obey them. And the effort of trying to enforce them by hauling
individuals into court for their private noncommercial use of works they
are licensed to see is bad [public relations], and likely to be
ineffective.

So my hope is that to the extent this works really badly, the interests who
insist they need a law like this might be willing to settle for something
that would actually put money in their pocket and wouldn't be a useless
law. ... Laws that don't get enforced get repealed. If people on a
widespread basis simply disrespect the copyright law, then all copyright
owners are the losers, and I'm hoping they'll be realistic about that, and
go back to the drawing board and come up with something a little more
reasonable.

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