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Digital Copyright
from the thinking-cap dept.
| Digital Copyright | |
| author | Jessica Litman |
| pages | 208 |
| publisher | Prometheus Books |
| rating | 10/10 |
| reviewer | Michael Sims |
| ISBN | 1-57392-889-5 |
| summary | how copyright law is like sausage-making |
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.
Re:Copyright? Copywrong? (Score:3)
Now they are a product that is owned indefinitely... it's a fundamental change in how we think of art, and I feel that it is a detriment to our society and culture.
Re:US-centric? (Score:3)
Yes and no.
US law doesn't apply in the UK (and vise versa), but both countries atempt to influence each other. Keep an eye on us (we keep and eye on you), to prevent the bad things the other guys are doing from happening to you.
Your right though, you need a UK version of this book.
This all sounds familiar... (Score:3)
I've been arguing almost exactly what Ms. Litman seems to be saying for quite a while now. Here's an email I sent in response to a recent InfoWorld "Ethics Matters" article by Carlton Vogt regarding music sharing.
Mr. Vogt,
Please forgive the longwindedness of this email. I really tried to cut it back :)
If we want to discuss this strictly at the ethical level rather than the legal level, then I think it becomes quite a bit simpler. We have 3 sides trying to get what they want. The consumer wants good music at a low price. The artist wants their music to be available to as many people as possible and for those people to pay them for that music. The recording industry wants to own or control as much music as possible for as long as possible in order to continue selling it to the consumer for the highest price possible while paying the artist as little as possible.
Now, ethically, I think the recording industry (along with the movie industry and certain [other] huge corporations) has behaved atrociously. They are the part of the system that is most at odds with both the artist and consumer. They have lobbied hard over the years for copyright term extensions, and have snatched many works away from the brink of becoming public domain as all copyrighted works are supposed to eventually become. I believe this has harmed consumers. The government is supposed to grant copyrights for a limited time to encourage the creation of new works, not to continually increase the term limit so that corporations can continue to profit from these works indefinitely. Copyright is supposed to be a bargain between the creators and the rest of the people. Without it, everything that is published or revealed somehow would be public domain. Since such a situation is not terribly encouraging for creators, we acknowledged the need for an incentive. Thus Congress was given the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Under copyright law, the people agree to grant the creators a limited period of exclusive control over the copying and distribution of their work so that they may earn a profit from those works. This is to encourage them to continue to create new works. Once that period ends, the work belongs to the public.
Unfortunately, due to their huge amounts of money, the copyright industry (music, books, movies, software, etc.) has been able to secure longer and longer periods of control and more and more restrictive terms of control. I believe the bargain has been broken. I believe that people instinctively realize that they are getting shafted and this is why so many people don't really respect copyright laws anymore. The law seems arbitrary and unfair now (and I think most of us can see this, which is why we spend more time discussing the ethics of copyright than the law itself). We see nothing in return. Practically nothing has entered the public domain in decades. Copyrights now last longer than a normal human lifetime. I think that defeats the purpose of the "limited period" portion of the Constitution. What we need now is some serious copyright reform.
That's the most relevant part, anyway. I went on to talk about the music industry specifically, but that's less relevant to this discussion. I think I've posted things here that were written better than that reply, but it does contain the gist of my arguments.
I just heard Ms. Litman on NPR last Friday along with Lawrence Lessig. It was interesting, but frustrating since they really don't get enough time to talk and the host tends to redirect things too often to keep it "light" enough for the listeners. I'm ordering her book today though. Sounds like it would be very interesting reading. Might help me make my point better next time we have a Napster argument here on slashdot. I just wish there was some good way to get more public attention on these issues. Most people I know really don't have a clue what copyright laws really say. It's exactly as Litman says, they just do what they feel they should be able to do. It's hard to figure out where things will go now. I think that the copyright industry is bound to start drawing some real public attention in the next few years as their various "content protection technologies" come to fruition. It could be a bucket of cold water to wake up consumers to what's been going on with copyright law for the last century or so. Or maybe their propaganda will have taken hold by then and people will simply accept it. I don't know. It worries me though.
Re:Copyright? Copywrong? (Score:3)
You have that exactly right. Copyright isn't -- or wasn't -- founded on the premise that you own your ideas. (The idea of owning ideas would have struck nearly everyone as absurd up until comparatively recently. It should still strike people as pernicious.) Copyright was founded on the premise that individual creators need to be protected from giant companies -- like the RIAA members -- long enough to make a reasonable profit before their creations fall into the public domain which is their natural place.
The modern copyright's near-permanent duration turns that on its head by disincentivizing future work. The idea of a copyright that endures for the lifetime of the author is a sure sign of the perversion of copyright law's original intent.
--
Re:Copyright? Copywrong? (Score:3)
What's important to clarify here is that this is NOT at all true -- although it IS the "nightmare" scenario that Disney would like us to believe.
Copyright only covers individual creative works -- not characters. The only copyright that would be expiring would be the VERY FIRST Mickey mouse drawings and animations, NOT everey single Mickey Mouse cartoon.
"Steamboat Willie" would thus fall into the public domain, but "the Sorcerer's Apprentice" would still have decades left of Disney ownership.
And I would contend that this is exactly what was meant to happen by the expiration of copyright -- has "Steamboat Willie" not yet become a part of American history? Has it not yet become an item of cultural significance separate from the company that produced it? Has not yet enough time passed for artists to begin exploring the effect of the animation, to begin playing with it and recreating it as a statement of history and culture?
Of course it is time for the creative world to have access to these early works -- for their significance and value as cultural touchstones.
Mickey Mouse will still belong to Disney, the public will merely gain possession of our own history.
---------------------------------------------
Too true (Score:4)
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 [cinemaweb.com])
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)
Re:Copyright? Copywrong? (Score:3)
But wait, there's more... (Score:4)
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...
Interview with Author (Score:5)
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.
Re:Copyright? Copywrong? (Score:5)
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.
The DMCA in the dead-tree world... (Score:4)
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.
Copyright? Copywrong? (Score:5)
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.