[Nettime-bold] Re: <nettime> Digital Copyright: Interview with Jessica Litman

["Alan Story" <a.c.story@ukc.ac.uk>]

Richard:

Thanks for this; very interesting.

Alan

----- Original Message -----
From: "Nettime's roving reporter (by way of richard barbrook)"
<nettime-l@bbs.thing.net>
To: <a.c.story@ukc.ac.uk>
Cc: <L.Marshall@WORC.AC.UK>
Sent: Saturday, October 20, 2001 10:49 PM
Subject: <nettime> Digital Copyright: Interview with Jessica Litman


>      [via <stalder@fis.utoronto.ca>]
>
> Law Professor Sparks a New Debate Over Flaws in Digital-Copyright Act
> By ANDREA L. FOSTER ,
> Chronicle of Higher Education, October 12, 2001
> http://chronicle.com/free/2001/10/2001101202t.htm
>
> Jessica Litman, a Wayne State University law professor who is an expert on
> copyright law, has prompted renewed debate among scholars about the
Digital
> Millennium Copyright Act with her book Digital Copyright (Prometheus
Books,
> 2001). In the book, she argues that copyright holders and owners crafted
> the law, and that consumers' interests were ignored.
>
> Q. Your book was released earlier this year. Do you think you need to
> update the conclusions or arguments?
>
> A. It's a moving target. ... A year ago, Napster had 40 million users. A
> year ago, although the recording and motion-picture industries were suing
a
> variety of online music and other nascent businesses ... Napster [and]
> MP3.com still had their heads above water. ... And a year ago neither the
> Edward Felten nor the Dmitri Sklyarov situation, both of which involved
> using the Digital Millennium Copyright Act to stop someone from telling
> people about their lawful activity, had happened.
>
> A year ago, Sen. [Ernest] Hollings [a South Carolina Democrat] had not yet
> released a draft of a bill that he says he plans to introduce to, in
> essence, require copy protection to be installed in every computer in the
> land. So in many ways, I think the possibilities for resolving the
> copyright wars in [ways] that aren't damaging to American scholarship, to
> American research, to American technology are somewhat reduced, just by
the
> vehemence with which this has been pursued. In addition, I think the
> argument that the Digital Millennium Copyright Act anti-circumvention
> provisions are unconstitutional is somewhat stronger than it was a year
> ago.
>
> I would expect the courts that are hearing these cases to [view them]
> subjected to a limiting construction, or to hold it unconstitutional. And
> that, from the view of the proponents of the DMCA, is self-inflicted
> damage. And it is the overreaching in enforcement that has caused this law
> to be perceived as illegitimate by large numbers of people, so what we've
> seen is that the recording industry and motion-picture industry have
> squandered their most awesome asset, which is the high moral ground.
> Everybody wants people who create copyright-protected works to get paid
...
> and that doesn't mean everybody supports controlling who talks about
> weaknesses in encryption technology.
>
> Q. Groups representing colleges have been largely silent on the issue of
> the Digital Millennium Copyright Act. Why do you think that is, and do you
> think they need to be more involved?
>
> A. This affects everybody at this point. It certainly is going to affect
> research. It will affect universities in their pocketbooks. Universities
> have many fights to fight. I can understand why they have decided this
> isn't one of theirs, that they need to fight for funding, and so forth. I
> think they are going to discover that as copyright laws get increasingly
> Draconian, it will indeed interfere with their core research mission and
> their core educational mission.
>
> But if it were only a case of whether or not college professors could make
> course packs, I'd agree with the universities that that is not worth
making
> your first priority. I think instead what we're discovering is that part
of
> the battle is about who can do what research, who can publish the
research,
> all sorts of things that I think are important to universities as a matter
> of principle. And I expect if the Digital Millennium Copyright Act
> continues to be read broadly that it is something that universities are
> going to take seriously.
>
> Q. Do you support the effort by Rep. Rick Boucher [a Virginia Democrat] to
> revise the Digital Millennium Copyright Act?
>
> A. I don't see anything in the process yet that persuades me that
> Congressman Boucher will be able to get a bill through if the
> copyright-affected industries don't support it. But I do think that it's a
> very good thing that the discussion is going to take place, and that
> Congress is going to have to revisit this issue.
>
> At the time, a number of members of Congress said, Well, all of these
> concerns libraries, for example, are raising are hypothetical, and unless
> you can show us that real damage is being done, I don't see why we should
> listen. There's a great deal more ammunition three years later than there
> was then. And I hope that there are hearings on Representative Boucher's
> bill so that some of that ammunition can get aired.
>
> Q. What do you think the solution is to the problem you lay out of fair
use
> being undermined and consumers' views being ignored in copyright
> legislation?
>
> A. This is an intractable problem. It's had a hundred years to build. And
> it's going to take some work. ... One of the wonderful things that Napster
> did ... was that it made 70 million people aware of the fact that there's
a
> copyright law out there and that they had opinions on what it should say.
>
> One of the things that happened when Professor Felten was threatened for
> publishing his paper is that academics realized that this isn't just about
> record pirates, it's about all of us. And the fact that the journalists
are
> covering this makes it a set of issues that's more salient to the public.
> At that point, I think, members of Congress may realize that allowing the
> affected industries to negotiate the substance of legislation in back
rooms
> is no longer a winning political strategy.
>
> Q. Why are you not optimistic about the effectiveness of political
lobbying
> to change the copyright laws?
>
> A. I think we have a securely entrenched structural situation. I think for
> the last 50 years it's been absolutely clear that the major players in the
> entertainment and information industries have enough political clout to
> block the enactment of a bill that they find unacceptable. ... That has
> meant, as a practical matter, that it's not possible to get copyright
> legislation enacted in this country unless every single commercial
interest
> affected by the law is better off than it is under the current regime.
>
> Now, I actually think that a law can be imagined which would leave them
all
> better off. I think that the effort on the part of the current market
> leaders to assert complete control over uses of their works, from the time
> they leave the factory on through a consumer's household, are doomed to
> failure. I don't think consumers are going to find that acceptable.
>
> And I don't think it's going to be possible to enforce it. ... I think if
> we could concentrate on making sure that the people who create and invest
> in works of authorship get paid, rather than [that] they get control, that
> it really is a situation in which everyone is better off. But I think it
is
> going to take at least until the music and motion-picture industries stop
> being terrified of the Internet that it's going to be possible to broach
> that approach as an alternative.
>
> Q. You write in your book, "If current trends continue unabated ... we are
> likely to experience a violent collision between our expectations of
> freedom of expression and the enhanced copyright law." Do you think this
> collision will occur, and if so, when?
>
> A. Those of us who support intellectual property but believe the extent of
> protection has gotten way out of hand have been arguing for some time that
> the details are important. We're now seeing people [getting] tripped up by
> the details. We're seeing scientists refusing to come to academic
> conferences in the United States because they're afraid of the DMCA.
>
> Increasingly, if we indeed find inter-suing and courts issuing injunctions
> against linking, against T-shirts, against telling people about the
> weaknesses in encryption, against selling or making some software that
> enables people to read books that are theirs, then it's all going to start
> feeling like the thought police. ...
>
> I think the software industry has some appreciation that there are limits
> to what the public is willing to settle for. But I don't think the
> motion-picture and music industries have run up against that. They don't
> have the software industry's history with copy protection.
>
> Q. Why do you suggest to consumers that widespread noncompliance with the
> Digital Millennium Copyright Act might be beneficial?
>
> A. ... People don't obey laws that they don't understand, that they don't
> believe in. ... So I think if we have egregious laws on the books, and I
> believe the Digital Millennium Copyright Act is one such, that they're not
> going to work, that they're not going to work because people aren't going
> to obey them. And the effort of trying to enforce them by hauling
> individuals into court for their private noncommercial use of works they
> are licensed to see is bad [public relations], and likely to be
> ineffective.
>
> So my hope is that to the extent this works really badly, the interests
who
> insist they need a law like this might be willing to settle for something
> that would actually put money in their pocket and wouldn't be a useless
> law. ... Laws that don't get enforced get repealed. If people on a
> widespread basis simply disrespect the copyright law, then all copyright
> owners are the losers, and I'm hoping they'll be realistic about that, and
> go back to the drawing board and come up with something a little more
> reasonable.
>
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