Copywrong - inequities of the Digital Millennium Copyright Act

Reason, July, 2001 by Mike Godwin

It is the latter view that has come to dominate the shape of American copyright law in the course of the last quartercentury, and much of Litman's book explains how this happened. The fundamental explanation, according to Litman, is that Congress has essentially delegated the business of writing copyright law to the copyright industries, which have used technological advance as a rationale for expanding its protected interests under the law.

This was not always the case. "The first U.S. copyright statute," she reminds us, "gave authors exclusive rights to 'print, reprint, publish, or vend'-in other words, to control the reproduction and sale of copies." At its heart, that law concerned commercial copying and commercial distribution of creative works-a fairly limited set of government-created rights that did not address things like performances and recordings. For a while this was OK for (to take Litman's example) composers of popular music. Sure, under the then-current copyright law they had no copyright interests in performances, but performers had to buy the sheet music, so composers got their revenue indirectly. But technology changes things: "Once it became possible to record a musical performance on a piano roll or phonograph record and to make and sell hundreds of those, or to broadcast performances over the radio, however, composers could be excluded from the additional proceeds generated by the recording or broadcast....Thus, each technological advance inspired a dispute about whether it entitled copyright owners to expanded rights over their works."

That pattern in itself was neither remarkable nor particularly threatening to the balance of rights then built into copyright law. But at the turn of the last century, Litman writes, "Congress got into the habit of revising copyright law by encouraging representatives of the industries affected by copyright to hash out among themselves what changes needed to be made and then present Congress with the text of appropriate legislation. By the 1920s, the process was sufficiently entrenched that whenever a member of Congress came up with a legislative proposal without going through the cumbersome prelegislative process of multiparty negotiation, the affected industries united to block the bill." What we have been left with, over the course of the last century, is industry-written legislation defining the terms of the copyright bargain-and the purported beneficiaries of that bargain, the public, have not been at the negotiating table.

As a result of this legislative pattern, which Litman documents in detail for each of the major revisions of American copyright law since 1909, the resulting legislative efforts have "predictable features." They expand copyright owners' rights, both by extending copyright interests expressly and by characterizing existing law in ways that have the effect of extending copyright interests. And they appease other groups that might otherwise be troubled by these extensions. They do this by crafting special exceptions-librarians are appeased by a special copying privilege for libraries (which requires a legislative definition of "library") and broadcasters are appeased with a special broadcaster privilege (which requires a legislative definition of "broadcaster"), and so on. The result is statutory law that expansively defines copyright holders' rights but is also riddled with special exceptions and definitions and provisions. As Litman writes, "The copyright law has gotten longer, more specific, and harder to understand." And, perhaps more important, the increasing expansiveness of the copyright law has led to a shift in the theory behind the law. What began as a government-created monopoly established in the public interest has increasingly come to be understood, especially by the copyright industries, as a kind of natural right. Which means that copyright policy nowadays is discussed less in terms of where the rights interests should be split between creators and the public and more in terms of preserving creators' livelihoods, or their "fundamental" rights to their creations.