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I didn’t give copyright law any serious study in law school, but that hasn’t stopped me from flattering myself that I understand it. After all, I did know a bit of copyright from my work as a journalist before law school, and as a lawyer I taught myself enough to write about it in my book about law in cyberspace. So you can imagine my surprise to learn from Jessica Litman, a law professor at Wayne State University, that just about everything I thought I knew about the underpinnings of copyright law is wrong — that it owes less to the copyright clause than to the Walt Disney Company. Litman lowered the boom during a speech at the Computers, Freedom, and Privacy conference in Toronto in April, where she gave a keynote speech about “the demonization of piracy.” Her comments — that the copyright industries tend to label any unlicensed use of copyrighted materials as “piracy” — were not in themselves news to me. I’ve even written about that phenomenon in this column. Prefacing her remarks about the demonization of so-called pirates, Litman laid out a brief history of what you might call “copyright talk” — the way lawyers and legal scholars talk about the policy framework underlying copyright law. And what I learned was that “copyright talk” has been shifting over the last century. During the past 30 years, and especially during the last decade, those shifts have been seismic. Under our original theory of copyright, said Litman, “the premise was that we wanted authors to have enough control over their works to be able to extract some of the commercial value from those works.” She added that this initial vision of copyright was based on “a quid pro quo model.” The government gives limited rights to authors, and authors in return eventually surrender the entire work to the public domain. This was the theory of copyright law I knew about. In many ways it is similar to the “compensation” model that replaces it. This theory is that the function of copyright was to provide authors with adequate compensation, and that in return for giving creators a livelihood, the general public received the long-term benefit of access to the works. Litman says this compensation model was the prevailing view of copyright theory “until fairly recently,” when Chicago School scholars began to explain copyright solely in terms of “economic incentives.” The incentives model assumes that increases in protection increase incentive, which in turn creates increases in authorship. These scholars also believe the converse: that a reduction of protection reduces incentive and authorship. I’d heard “incentives” talk before too, but what I hadn’t really gotten, until Litman explained it, was that when copyright talk focuses on incentives, the general public gets left out of the discussion. Fair use, for example, becomes a benefit for authors rather than the public. As Litman put it: “Under what is now the conventional way of talking about this stuff, in order to justify copyright limitations like fair use, you need to argue that authors and publishers need fair use to create new works of authorship because the transaction costs of operating without fair use would reduce the copyright incentives.” Because the incentives model does not focus on compensation, Litman told us, it does not ask “how broad a copyright is appropriate, how broad a copyright is fair?” Instead, she said, it creates a conundrum. When copyright talk is based purely on incentives, she explained, it always makes sense to lengthen and strengthen the law. But if longer and stronger is always better, Litman said, “there is simply no good reason why copyright should not cover everything and last forever.” This sort of thinking, she added, has led to a “one-way ratchet” of increasing copyright protection. As I listened to this part of Litman’s talk. I started getting depressed about copyright law, which I as a copyright holder normally have a basic fondness for. But the worst was yet to come. Even the incentives model has been supplanted in the last five or six years. Most recently, Litman told us, the law has begun to move to a “control” model — a model in which every use of a copyrighted work requires the author’s permission, or else it doesn’t happen. It’s a model in which the technological tools that are part of the digital revolution can ensure that nobody gets access to digital content unless he or she actively circumvents the content owner’s control technology. And it’s a model in which the very act of circumventing that technology may result in a lawsuit or a prosecution, thanks to the “anticircumvention” provisions of the Digital Millennium Copyright Act. Litman said that American copyright has now become “a tool for copyright owners to extract all the potential value from their works, even if that means that [unlicensed] uses that have long been deemed legal are now brought within the copyright owner’s control.” This shift may effectively end even the possibility of legal unlicensed uses of copyrighted materials — especially since Congress continues to extend the period of copyright protection whenever it looks like Disney’s first Mickey Mouse cartoon, “Steamboat Willie” (1928), might enter the public domain. At-home taping of movies for personal pleasure, creating a compilation CD of greatest hits, making a copy of this article for a friend — all these activities may be endangered under a control model. As part of this movement, Litman said, some people have argued that we don’t need fair use anymore because digital transaction costs are so low “that you can always ask permission.” But Litman warned that there are consequences to this control model: “In a digital age, the only way to accomplish that is to give authors [and their proxies, publishers] control over access — not merely initial access but continuing control over every sequential act of gaining access.” The implications of such control were obvious even to me: Not only would it become increasingly difficult for me as a writer to quote or refer to copyrighted works without the copyright holder’s knowing, but it would also become harder to do so without his or her permission. Think of what literary criticism would become if every essay or review that quoted a work were conditioned on the author’s knowledge and approval! Worse, tracking everything we see, hear, and read every time we see, hear, and read it could do serious damage to our privacy. Litman had scared me, as she meant to. But she wasn’t finished yet. She then told us that she is “very pessimistic about any chance we have of changing the law” by petitioning Congress to restore the balances that once were part of the copyright framework. Congress, she said, “is firmly in the pocket of the content industries, and there’s not much hope that that’s going to change anytime soon.” An attempt to rewrite the law now “would be an exercise in tilting at windmills,” she said. She was slightly less pessimistic about the prospect that the courts might construe the existing law — the original Copyright Act, plus the Digital Millennium Copyright Act, which added the anticircumvention provisions — “in a way we could live with.” But that won’t happen, she said, until courts cease to regard anyone who’s interested in enabling people to overcome those technological roadblocks as a presumptive “pirate.” The “demonization” of those who engage in what were once understood to be lawful (although unlicensed) copying of copyrighted works has to end. Her audience had gotten pretty gloomy at this point. One individual stood up and asked her how, if Congress couldn’t be reached, and the courts were biased in favor of the copyright holders, the rest of us might be able to change the law. And this was when she unleashed her final shocking bolt. “Oddly enough,” Litman said, “I’m coming around to the view that the best ray of hope, at least in the United States, lies in widespread noncompliance.” She added, “This is a very tough thing for a lawyer and a law teacher to say, but it seems to me that only widespread noncompliance gets us to a situation where the law is not helping the people who worked so hard to put it into place, and if it’s not working, they may be willing to let it go.” It wasn’t that the law professor was telling us to break the law — what she was doing instead was making a kind of contingent prediction: that it would take the shock of our widespread civil disobedience to bring the copyright powers back to the bargaining table. And then it hit me — what we would be protesting if we chose civil disobedience would not be colonialism or apartheid or racism or a war. Instead, it would be the fact that our copyright law was gripped tightly in the four-fingered hands of Mickey Mouse. Mike Godwin ([email protected]) is senior legal editor of the E-Commerce Law Weekly and author of “Cyber Rights: Defending Free Speech in the Digital Age” (Times Books, 1998).

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