September 30, 2003
Designing Litman’s Lawyer Into the Legislative Process
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?
Filed by Derek Slater at 3:19 pm under General news
1 Comment
Hi Derek… I’ve been thinking about this a lot lately… ever since seeing Brewster Kahle of the Interent Archive talk last week ( http://tinyurl.com/pcb8 ) and realizing that it’s a pain in the ass to archive things mostly because the market fails to support archival characteristics of goods (or, in the case of databases and email, having archival information can be a significant liability).
I’m starting to think that there is a larger market failure that encompasses a lot of the digital rights conversation. Specifically, capitalism is notoriously bad at facilitating anything but amplifying the voices of the “haves”.
I guess the good news is that I’m starting to see that traditional tools to correct market failure in certain circumstances don’t seem to be working in the copyright realm.
The bad news is I have no idea what to do about it… I did have a thought that was momentarily interesting: What if copyright in a work expired when the work was no longer commercially viable? This would solve Brewster’s problems with archiving the 20th century as the majority of works from that period would fall under this rule… but there’s a whole can of worms in this proposal opens and spills on the kitchen table (How do you decide that something is no longer commercially viable? Should there be a founder’s copyright term before this commercially-viable rule kicks in?)
Damn. I just don’t know.
best, Joe (PS: I may or may not have time to come back and see if there are any other comments… please send an email (joehall@pobox.com) if you want to make sure I read something!)