Litman, Jessica. “Revising Copyright Law for the Information Age.” Copy Fights: The Future of Intellectual Property in the Information Age. Eds. Thierer, Adam and Wayne Crews. Washington, D.C.: Caton Institute, 2002. 125-46. Print.
- Litman takes multiple different perspectives in this article by adopting the viewpoints of the multiple parties involved in the question of copyright for the digital era.
- Litman notes that adopting rules from the old copyright system for the new context wouldn’t be all that beneficial because, in the long term, those rules would disable and inihibit the future development of technological advances. While some might argue that the technology would develop to meet the rules imposed from the old regime, this would only be a temporary solution as technology would constantly be circumventing its constraints (126).
- L. notes that a more benevolent position might be to approach copyright with the promotion of new technology in mind. While conventional wisdom might argue that copyright exemptions on technology would inhibit growth (because of a lack of financial motivation), “history tells us that they (entrepreneurs) do invest without paying attention to conventional wisdom” (127). L. argues that copyright shelters encourage new development by welcoming new players to the technology scene – players without a vested interest and a desire to capitalize on their ideas (or maybe not their ideas).
- Another viewpoint: the perspective of understanding copyright as a “bargain between the public and copyright holders” (128). Litman notes that this viewpoint typically adopts the perspective of the copyright holder: what do they need to be encouraged to continue producing. Instead, Litman wants to consider the other side – what does the public want to receive from the copyright bargain? (129)
- In tracing the history of copyright in the US, Litman highlights how congress initially didn’t protect the right to print or reprint translations or adaptations; further, public perfocmance, and display of copyrighted work were also not a problem. This was thought to encourage further development. It wasn’t until DMCA that congress enacted access-control mechanisms that ceded the right to listen to, learn from, look at, or use copyrighted material back to the copyright owners and away from the public (130). DMCA enacted this provision because, for the first time, the means of production was capable of producing a perfect, real copy of the original copy.
- Litman highlights how the arrival of digitized reproduction makes serious challenges to the long-held reproductive rights of the copyright owner. L. argues that reproduction should no longer serve as the basis for copyright because of the inherently reproductive nature of digital artifacts in a wider public that widely owns the means of digital reproduction (132). This gets at the heart of the current copyright controversy: do you control a society through anti-circumvention measures and invasive technologies (Sony BMGs rootkit)? Is it even possible to do that?
- Litman argues that we need to revision the system by: 1) preserve some incentives for copyright holders; 2) make some sense of copyright from the perspective of the individual; 3) make copyright easy to learn; and 4) create copyright doctrine that seems sensible and just to the people we are asking to obey it.
- Litman argues that we should abandon the copy in copyright because of the mass proliferation of digital reproduction. Instead, L. argues that we should think about copyright as an issue of commercial vs. noncommercial use (135). Under this system, piracy – as defined in private bit torrent communities – would still be illegal. Interestingly, Litman notes that drawing a man to show where an infringing object might be found shouldn’t constitute copyright violation because this is a form of citation (138). So, the implications for bit torrent are a bit complex and seem to be in a gray area.
- L. argues that copyright should not be extended backward to works that have fallen into the public domain. . . even if they take a new mode of delivery. L. acknowledges that the noncommercial alteration of works without attribution will actually exacerbate the problem of alteration; however, L. claims that by using hyperlinks to work back to the original document, authors could simply cite (a moral practice, not economic) when they have altered an artifact for noncommercial purposes (140).