Digital Copyright Digital Copyright Jessica Litman Copyright © 2017 by Jessica Litman Some rights reserved This work is licensed under the Creative Commons Attribution- NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nd/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, California, 94042, USA. Published in the United States of America by Michigan Publishing Manufactured in the United States of America DOI: http://dx.doi.org/10.3998/mpub.9798641 ISBN 978-1-60785-418-0 (paper) ISBN 978-1-60785-419-7 (e-book) An imprint of Michigan Publishing, Maize Books serves the publishing needs of the University of Michigan community by making high-quality scholarship widely available in print and online. It represents a new model for authors seeking to share their work within and beyond the academy, offering streamlined selection, production, and distribution processes. Maize Books is intended as a complement to more formal modes of publication in a wide range of disciplinary areas. http://www.maizebooks.org For Ari Contents Author’s Note ix Acknowledgments xi Introduction 1 CHAPTER ONE Copyright Basics 5 CHAPTER TWO The Art of Making Copyright Laws 11 CHAPTER THREE Copyright and Compromise 23 CHAPTER FOUR A Thought Experiment 55 CHAPTER FIVE Choosing Metaphors 61 CHAPTER SIX Copyright Lawyers Set Out to Colonize Cyberspace 72 CHAPTER SEVEN Creation and Incentives 83 CHAPTER EIGHT “Just Say Yes to Licensing!” 93 viii Contents CHAPTER NINE The Bargaining Table 103 CHAPTER TEN The Copyright Wars 129 CHAPTER ELEVEN Copyright Law in the Digital Millennium 143 CHAPTER TWELVE Revising Copyright Law for the Information Age 148 CHAPTER THIRTEEN The Copyright Bargain 167 Afterword 171 Postscript 177 Index 189 Author’s Note I fnished the original manuscript of Digital Copyright in 2000, two years after Congress enacted the Digital Millennium Copyright Act. The 1976 Copyright Act was itself 24 years old, and beginning to show its age. The Internet, in contrast, was still new and shiny and scary, especially for legacy entertainment and information businesses and the copyright lawyers who represented them. Seventeen years later, the Internet has become an essential feature of all of our lives and the copyright laws designed to tame it seem elderly and barnacle-encrusted. Remarkably, the legislative process that has made sensible copyright law reform all but impossible has stayed largely unchanged. Congress and the Copyright Offce have recently launched what is billed as a comprehensive reexamination of copyright law with the goal of overhauling the law for the 21st century. It seems likely that these efforts will hew to the patterns of earlier copyright revision. Perhaps we stick with the tried and true approach to making copyright laws, even though it results in bad laws, because the process works so well for so many of the participants. Members of Congress can rely on affected industries to come up with broadly acceptable compromises, and to take on much of the burden of pressuring other interested groups to swallow them. Meanwhile, Senators and Representatives can continue to collect generous campaign contributions. The Copyright Offce can be the center of attention as it plays a crucial role in managing the multilateral negotiations and interpreting their results to Congress. Copyright lob- byists and trade organizations can collect hefty fees from their members, in return for supplying them with laws that will give them competitive advantages against the next new thing, whatever it is. Because the laws that emerge from this process don’t work very well, meanwhile, everyone can look forward to another round. Although this book is ancient in Internet time, people seem to have continued to read it. Now that it has fnally gone out of print, I’m delighted to be able to make it more freely available under a Creative Commons license. In addition to the Afterword that I wrote for the 2006 ix x Author’s Note paperback edition, I have included a postscript looking back briefy on what, if anything, we might have learned from the aftermath of the sto- ries told in this book. I want to express my gratitude to Prometheus Books for graciously returning the rights to this book when I asked for them back; to the Authors Alliance for advice on how to reclaim the rights and release the book under a Creative Commons license; to Jason Colman, Director of Michigan Publishing Services, for taking on the project; to the William W. Cook Trust, for helping to pay for it; and to Jonathan Weinberg, for perceptive critique, gentle copy-editing, and more than thirty years of intellectual and emotional support. I love you Jon. Acknowledgments (from 2000 edition) I began the research refected in this book ffteen years ago, and many people have helped me to formulate and clarify my thinking. Jon Weinberg has helped more than anyone; he asked me all the diffcult questions (even before he married me). I cannot imagine writing any- thing without his help. Jon has read every word in this book at least a dozen times, and offered perceptive suggestions each time. James Boyle suggested the idea for the book, and kept urging me to write it. Jane Ginsburg is a longtime friend and collaborator who has had to struggle to fnd any sentence she agrees with in my recent work. Jane’s idea of the public good is very different from mine, for which I’m grateful. The opportunity to argue with someone who sincerely and without ulterior motive believes that we would all be better off if copyright protection were even stronger than it is now kept me honest. Pam Samuelson and I have worked together and in parallel on digital copyright issues for many years. Pam’s work and thinking has greatly infuenced mine. It was Pam’s request for a paper that set me on the road leading to my proposal in chapter 12 for an alternative copyright system. Peter Jaszi’s inspiration to recruit foot soldiers in the copyright wars to join the Digital Future Coalition gave me both something constructive to do with my outrage and the opportunity to learn how lobbyists work their backstage magic. American University gave me a home for a year that enabled me to see the story unfold from the front row. Diane Zimmerman and Rochelle Dreyfuss encouraged me to think more deeply about consumers’ ideas of legal legitimacy. When I needed a particular succinct interpretive paradigm, Niva Elkin-Koren’s work supplied it. Of the many other people who helped me with the book or infuenced my thinking, I owe special thanks to Hal Abelson, Jane Friedman, Seth Greenstein, Larry Lessig, and Dani Zweig for giving me crucial pieces in the puzzle. xi Introduction American ideas of freedom are bound up with a vision of information policy that counts information as social wealth owned by all. We believe we are entitled to say what we think, to think what we want, and to learn whatever we’re willing to explore. Part of the information ethos in the United States is that facts and ideas cannot be owned, suppressed, censored, or regulated; they are meant to be found, studied, passed along, and freely traded in the “marketplace of ideas.” In fact, information is regulated in this country as in others. We have an enormously complex collection of information law prescribing terms and conditions for a variety of different providers of information. Broadcasters are the most obvious example of regulated speakers, but we also have rules about what schools may teach and where protesters may demonstrate. The rules about how and when citizens can get informa- tion from the government are complex and arcane. Despite the web of regulation that surrounds some regions of free-speech law, however, the underlying concept holds true more often than not. In the United States, at least for the most part, we may say what we think, think what we want, and learn whatever we are willing to explore. There are other corollaries, and we’ve gotten accustomed to them. We’ve been able to do our reading, viewing, and exploring privately and anonymously, and have come to view the ability to do so as a natural right. A world in which each word we read or image we view is moni- tored and recorded seems like the stuff of science fction: unimaginable and, in any event, impossible in America. The Internet has been hailed as the most revolutionary social devel- opment since the printing press. In many ways its astonishing growth has outstripped any historical analogy we can unearth. What has fueled much of that growth has been the explosion of new possibilities for connections—among people, among different formerly discrete packages of information, among ideas. It isn’t that anyone would prefer to use a unix box (or even a Windows tcp/ip client) to fnd out what one can more easily read in the paper. Rather, one can interact with other people, and 1 2 Introduction with the information one seeks, and do so directly at previously unthinka- ble speeds. Digital media and network connections, it is said, are the most democratic of media, promoting free expression and access to information wherever a computer can be hooked up to a telephone line. In this celebration of new possibilities, we tend to emphasize the many things that become feasible when people have ready access to informa- tion sources and to other people not practicably available before. The scope and the speed of interconnected digital networks make conversa- tions easy that before were unimaginable. The almost utopian vision of a wired future seems to assume that the legal infrastructure of our infor- mation policy will continue to encourage us to speak, think, and learn as we will.