Can Copyright Become User-Friendly? Essay Review of Jessica Litman, Digital Copyright (Prometheus Books 2001)

Abstract

Professor Litman has written Digital Copyright for the general public, though lawyers, and especially lawyers, would do well to read it. Professor Litman's message is straightforward: Copyright law is too complicated and counterintuitive. It has been written by and for lawyers who represent many, but not all, of the players. Those left out include developers of new ways of communicating copyrighted works, and, most importantly, end users. But nowadays, directly affects end users in ways more pervasive than could have been expected in the analog world. If law doesn't make sense to those who are supposed to adhere to it, will cease to be a meaningful constraint on users' activities. This review first briefly addresses Professor Litman's evocation of the law-making process. Her discussion of legislative history presents a valuable and compelling account, especially for those unfamiliar with law. But the most provocative portions of the book, to which this review will devote most attention, are the chapters in which Professor Litman (a) reviews and challenges various metaphors for policy (Chapter 5, Choosing Metaphors); (b) in which she recounts the rocky relationship between owners and developers of new technological means of disseminating works (Chapter 10, The Copyright Wars); and (c) in which she offers her own prescription for a simple, fair and workable law (Chapter 12, Revising Copyright Law for the Information Age). Digital Copyright will not dispel disagreements about copyright's goals and proper scope; but because Professor Litman is such an effective advocate, she forces copyright optimists (such as this reviewer) to think harder about whether strong protection remains desirable. This review therefore endeavors not only to present Professor Litman's arguments, but to offer some reasons for resistence to some of those claims.