If
you are looking for a clear and illuminating analysis of the major issues
facing copyright owners, content developers, and the public that consumes
copyrighted works, then Professor Litman's DIGITAL COPYRIGHT is a great
place to start.
DIGITAL
COPYRIGHT is not geared exclusively for the needs of either the scholar
or of the average interested reader; it is likely to be able to serve
both types of individual quite well. Professor Litman's concise volume
provides even newcomers to the field with an instructive framework within
which they can evaluate the current digital copyright environment and
its more fascinating disputes.
A central
thesis of Litman's piece is that current copyright law does not represent
the public's interest and instead is the product of those with the most
money to allocate towards drafting copyright laws that best protect
their financial interests. By providing readers with a wonderfully understandable
primer on the major developments in copyright statutory law throughout
English, colonial, and American histories, Litman sets up her criticisms
and proposals by contrasting them with the historical underpinnings
of the development of copyright doctrine.
Litman
suggests that copyright laws have historically been "full of holes"
in order to function as a bargain between the public and the author.
Today, however, copyright law has evolved into a system that is primarily
designed to preserve creative incentives. Litman argument explains how
much of today's copyright law is more about protecting the property
interests of copyright owners than about enhancing the ability of the
public to access and learn from those works. Her historical analysis
continues when Litman provides readers with her take on President Clinton's
National Information Infrastructure Task Force ("NIITF").
In
a particularly intriguing section of DIGITAL COPYRIGHT, Litman explains
how the NIITF solicited perspectives and commentary from the public
about what would need to be done before content developers would be
willing to invest in the early national information infrastructures
of the early 1990s. NIITF committees and conferences led to the drafting
of important Green and White Papers that have had a profound impact
on the development of digital copyright legislation. The early landscape
of the NIITF and its hearings created a legislative environment in which
large corporations in the fields of entertainment and technology were
and continue to be able to shape the current character of federal copyright
laws that affect everyone.
Litman
notes an unfortunate result of what she perceives to be the over-expansion
of copyright laws when she writes she points out that many if not most
works are comprised of both protected and unprotected elements. An overbroad
system of copyright laws can often err on the side of prohibiting the
productive use of unprotected elements of a work. The unprotected elements
of a work can include any ideas that it contains, as well as its underlying
factual basis.
DIGITAL
COPYRIGHT is full of Litman's common-sense approach to copyright laws.
Litman points out that most "people don't obey laws they don't believe
in." Her argument is not so much that people will actively protest copyright
laws that they find repugnant, but rather that many people unfamiliar
with the labyrinthine copyright law codes simply do not believe that
their conduct could unlawfully infringe the rights of the copyright
owners. The Digital Millennium Copyright Act ("DMCA") she argues, is
lengthy, internally inconsistent, and incredibly difficult even for
experienced practitioners to understand and explain. Litman suggests
that future copyright laws be short and clear so that even young people
can more easily understand how the unlawful use of intellectual property
is conceptually identical to the unlawful use of physical property.
Litman
ultimately proposes that future formulations of copyright laws should
be more concerned with how it is that we want the public to be able
to interact with copyrighted works than it has been. She argues that
the public interest is poorly represented in many of the larger debates
over digital copyright (particularly the highly-publicized MP3.com and
Napster fiascoes). Litman goes as far as to suggest that copyright laws
should be most concerned with the effect that any particular use has
on the copyright owner's ability to commercially exploit the copyrighted
work.
I would
feel comfortable in recommending DIGITAL COPYRIGHT to anyone who has
been curious about the digital copyright laws and who could benefit
from a more academic evaluation of them than that which is otherwise
available in the news media. DIGITAL COPYRIGHT intelligently sets forth
the important arguments that are raised by key players on all sides
of these complicated issues. Litman's clarity of presentation and thorough
research render her book a fine place to start one's exploration of
what is certain to be an exciting field of both research and practice
in the coming years.
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