Digital Copyright.
by Jessica Litman.
Prometheus 2001. 208 pages. Index, Glossary chapter notes. $25.00 Hardcover. ISBN 1-57392-889-5 LoC KF3030.1.L28 2000.

Reviewed by  Robert Bruen   May 27, 2001

Copyright law is a fairly painful experience, whether you are reading about it or are on the wrong end of a lawsuit involving it. It is part of the money making, legal domain of Intellectual Property, which also includes patents and trademarks. The laws are arcane. The laws are complicated. The laws are protection for the holders of the property. It is not the topic you really want to bring up at a party. At least that was true until recently. Our current wave of the technological revolution has threatened the very basis for intellectual property, causing the big players to fight back with very big guns. Intellectual property is an important building block of the wealth of our society, so when that much money comes under fire, a serious protective strike employing as many political, legal and public relations weapons as possible is the only possible reaction.

The underlying principle of copyright is that the producer of some work, such as music or literature, gets to control the distribution, that is to say replication, of the work for some extended period of time. This is so that the artist or author can reap the just rewards of their efforts, thereby encouraging more such works to be produced. A noble idea. However, copyrights can be sold, traded and given away. More often than not, some corporation ends up owning the rights, not the original artist. Corporations have lawyers and lobbyists who work very hard to maintain these rights for as long as possible. They also work to extend their rights. With the last iteration of negotiations to produce the most recent version of the US copyright law, the Digital Millennium Copyright Act (DMCA) of 1998, the envelope has been pushed so far that ideas such as Fair Use no longer mean anything.

The DMCA is a response to industries under siege from the likes of Napster, MP3, Bearshare, Gnutella and the worldwide digital distribution of pirated software, video and music. It is the ultimate battle between the law and technology. And it is just getting started. If you want to participate in this unfolding adventure, Litman's book is the place to start. A short, eye opening history explaining just how the copyright law making process works, starting at the beginning, it is required reading to understand where we go next. The process is one in which stake holders get together with a US government official, the Register of Copyrights, to negotiate the new law. Unfortunately, no one represents the citizens. The first thing that happens is no one is allowed to do anything, then exceptions are made industry by industry, for a particular use. Tradeoffs are made so that each industry gets some revenue and/or rights to use, until all the parties are satisfied. Parties that is that have enough clout. Most of us do not get any of the prized exceptions.

The law has worked well for a long time. Libraries were allowed to buy books so that others could read them without paying for them directly. Educational institutions could provide materials to students. Fair use was an accepted idea, but it seems to have become an early casualty in the war for control. The very restrictive DMCA is being aggressively enforced. However, it is difficult to imagine how peer to peer sharing will be stopped by legal means. One of Napster's failings was the existence of a central service and server, which the lawyers could target. Without such a target, the lawyers have difficulty. If everyone ignores the law, the law loses it power, not unlike Prohibition. When Prohibition was repealed, new industries sprouted producing and distributing booze. When the DMCA fails in the future, industries will fail with devastating effects. This may not be such a bad thing. When the Industrial Revolution was underway, there was much social upheaval, which we weathered, eventually producing stronger economies. We are passing through an equivalent period within the Information Revolution. It will get worse before it gets better. Those who try to gain from the changes instead of fighting the changes will be the ones who survive.

I recommend Litman's book because it is well done, informative, relevant and you just have know how the game is played.