Professor Jessica Litman uses a neat rhetorical device to discuss copyright law. She asks you to imagine a lawyer whose job it is to defend the public’s interest in copyright, and then ask that lawyer whether the public should accept a given copyright bargain.
Litman uses this device to point out how little of copyright is designed from this perspective. As she outlines in her book Digital Copyright, copyright law is often designed in backroom deals by lawyers and lobbyists and then handed over to Congress for rubber stamping. Because it is “devised by copyright lawyers,” copyright law is “inevitably copyright-centric” ignoring other elements of information policy:
“In addition to free speech concerns, information policy takes account of issues related to equity, competition, ensuring a diversity of viewpoints, securing ready and affordable access to important sources of information–all issues that are at best tangential to copyright law and in some cases wholly alien.”
In the end, Litman is incredibly cynical about bettering copyright by lobbying Congress. For that reason, she doesn’t provide any clear way of changing the legislative progress. (See Pam Samuelson’s review of the book, noting this point.)
So, as we continue Congressional hearings on P2P, I wonder: is there reason for hope? Has anything changed since Litman’s analysis, which centered around the DMCA?
As I’ve said before: (correct me if I’m wrong, but) we have more public interest lobbying groups than ever to attack these issues. There are more organizations fighting on many different fronts. We are also gaining legislative allies. Even the tech companies, once so unwilling to step up on these issues, are getting involved (note: I don’t agree with everything the ADP stands for – I’m just glad that more tech groups are making themselves heard in Congress.) And the general public seems to be paying more attention, too. That gives me some hope.
With this in mind, what more can be done to design Litman’s lawyer into the legislative process?