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THE DMCA, THE DEATH OF NAPSTER, AND THE DIGITAL AGE: A Review Of Jessica Litman's Digital Copyright
By LAURA HODES
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Friday, Jul. 20, 2001

Jessica Litman, Digital Copyright New York: Prometheus Books, 2001.

Early in her new book, Digital Copyright, law professor and copyright expert Jessica Litman cogently presents the problem the Internet creates for the public: "Digital technology makes it possible to monitor, record, and restrict what people look at, listen to, read, and hear."

Perhaps, Litman writes, the public would be willing to pay this price of surveillance so that America can maintain its dominance in the information and entertainment industries. "Citizens are not, however, being asked," she writes, "and their elected representatives turn out to be in no position to evaluate that bargain on their behalf. Meanwhile, the people who argue that the nation's prosperity requires a legal regime that enables information to be tightly controlled seem likely to prevail."

As Litman explains, at the same time that the Internet fosters enhanced technological surveillance of the use of copyrighted works, copyright legislation has increased copyright owners' legal control over their work.

Listening to Industry, Not the Public

Therein lies the essential problem that Litman's book addresses: members of Congress could not care less what their constituents feel about copyright, and listen instead to the large interest groups that lobby them.

For example, it is the movie studios and record labels who are responsible for the Digital Millennium Copyright Act ("DMCA") — a recent, cumbersome copyright statute designed to adjust traditional copyright doctrines to the Internet milieu. Litman criticizes the DMCA for being too pro-industry.

Specifically, Litman perceptively maligns the Act for cutting back on the doctrines of fair use and first sale: traditional tenets of copyright law which give the public, industry upstarts, and future authors' access to copyrighted works. (Fair use allows certain uses of a work — for example, quotations — without permission or payment. The first sale doctrine allows the new owner of a work to treat it as his or her own; he or she can sell it — except if it is software — or alter it.)

How to Get the Public Interested in Copyright

Early in the book, Litman suggests that it is possible to make the public aware of the importance of copyright to their lives, so that Congress will listen to them and copyright legislation will become more consumer-friendly. Indeed, that seems to be the book's worthy mission: "Since members of Congress are disinclined to ask the right questions without prodding from their constituents, it has become crucially important for the general public to appreciate the huge stake it has in what questions are asked and how these questions are answered."

Litman does a good job of describing the history of copyright and the powerful role that industry groups had in controlling the negotiation of copyright legislation, from the original Copyright Act to the DMCA. But to succeed in her goal of making the public an interest group to contend with, Litman needed to show readers the visceral impact of the increasing control that industry has over copyrighted work on the lives of consumers — and at this task, she fails. As a result, her book ends up being less than effective as a platform to change the copyright status quo.

Optimism Belied by the Death of Napster

In part, Litman's timing is simply off. Unfortunately, Digital Copyright was written and published a little too early, in a more hopeful cyberspace world — before troubling recent events such as the effective shutdown of Napster by the labels' lawsuits.

Litman accurately portrays the hypocrisy behind the music industry's lawsuits against MP3.com and Napster in that the labels themselves have been reluctant to release their own product over the Internet, yet they don't want any upstart to do so either. In other words, if there will be innovation on the Internet, the labels want to own it.

However, when Litman wrote the book, Napster still had forty million users despite the record industry's lawsuit against it. As a result, Litman looks to the defiant use of Napster by millions as proof that "what the law says doesn't matter." She argues that people did not comply with the ruling against Napster because it did not make sense to them.

But in the last few weeks, traffic to Napster has dwindled as a result of Judge Patel's ruling that Napster must gain permission for the use of songs from the labels. Litman, it turns out, was far too optimistic about both the predicted outcry from users, as well as the extent to which the public's dissatisfaction with copyright law or court rulings holds any sway.

Napster has effectively closed its doors, without much of an outcry from the public at all. Similarly, Litman's description of ex-CEO of MP3.com Robertson's "bad-boy" image and the lawsuits against his MyMP3.com service seems quaint today. Several weeks ago Vivendi acquired MP3.com and Robertson went corporate.

Really, despite what Litman writes, it does not matter what the public wants or whether the public thinks the Napster ruling is not consistent with the original purpose behind copyright to promote creation and innovation. The public wanted Napster and its free file-swapping. Surely consumers do not want what is promised as the current state of affairs, competing subscriptions services offered by the labels, in which users will have to pay on a subscription basis and will not be able to take advantage of the liberating taste fair that was Napster.

How Copyright Owners Effectively Censor New Technologies

Litman is on more promising — and relevant — ground when she cites recent examples of copyright owners litigating against and shutting down other companies that the public would have been fond of–such as Scour, RecordTV, and iCraveTV–while at the same time declining to make their own material available for download.

In short, copyright owners repeatedly are relying on the copyright law they lobbied for to kill smaller companies and replace them with poor cousins — or with nothing at all. But while Litman notes the trend, she fails to go beyond the facts she presents to the alarming conclusion that they imply: by lobbying for changes in the copyright law, namely the DMCA, and then using that law to litigate against upstarts, industry is controlling which digital technologies can be viable and thereby available to the public. They have become, in effect, technology censors for us all.

Indeed, Litman does not mention that there really are no industry upstarts anymore, as major stakeholders have either purchased the upstarts or litigated them into the ground.

Had Litman gone a little further, to spell out these disturbing conclusions, she would have better fulfilled her book's mission: to alarm readers and inspire the public to care enough about copyright topics that they start lobbying Congress for change. As it stands, the book educates readers about the current state of affairs of copyright law and how copyright law is negotiated, but it fails to bring readers to their feet.

An Unwarranted Optimism

Rather than stirring readers to action, Litman ends on a note that seems unduly optimistic, and that urges the public simply to ignore the law, rather than lobbying to change it. Near the end of the book, she writes:

As I have watched the copyright wars intensify, however, it has seemed to me that consumers' widespread noncompliance offers a very real ray of hope. I don't expect large crowds of Napster-deprived citizens to rise up in civil disobedience against a law that they perceive as unjust–even in the post-Napster world, copyright will not be a hot issue. Instead, I expect that most people will continue to ignore a law written in barely comprehensible prose that makes no sense whatsoever from their point of view. . . People don't obey laws that they don't believe in. . .If a law is bad enough, even its proponents might be willing to abandon it in favor of a different law that seems more legitimate to the people it is intended to command.

This idea — that if you ignore the DMCA, it will just go away somehow — has been belied by recent events–the litigating to death of Scour, RecordTV, iCraveTV, and Napster, the arrest this week of a computer programmer under the criminal provisions of the DMCA for designing software to decode ebook software, the recording industry's threatening of a Princeton professor who intended to present a paper on the labels' copy protection plans.

The public does not have the choice to ignore the law. It's too late for that. The public's only recourse now is to exhort Congress to change the DMCA. But Litman's book, lacking in enough polemic, fails to encourage readers to do just that.

Perhaps Litman was too hopeful about the fate of Napster, and role of the public's civil disobedience because she did not believe that copyright law could be so subverted. But this hopefulness, by encouraging readers to sit back and ignore the law, as if this were a possibility, prevents Digital Copyright from being the important, revolutionary work it might have been. Instead, it is a worthwhile read — particularly for its description of the evolution of copyright from its historical beginning to the digital age — but not quite the manifesto Litman (or her reader) might have hoped it would be.


Laura Hodes, a 2000 graduate of the University of Chicago Law School, is an attorney and freelance writer living in Chicago. She works as an associate at Gordon & Glickson, an information technology law firm. In addition to writing for this site, she has recently published several articles on cyberlaw on The New Republic Online (www.tnr.com).

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