Jessica Litman, the John F. Nickoll Professor of Law and Professor of Information at the
University of Michigan, delivered the Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture yesterday at the Law School. (Audio available here; a print version will be forthcoming in the Marquette Intellectual Property Law Review.) The subject of Litman’s fascinating lecture was “Real Copyright Reform” — the word “real” referring not to what is likely to actually occur, but rather what sort of changes would truly reform the Copyright Act.
Litman believes that yet another wholesale revision of the Copyright Act, akin to those in 1831, 1870, 1909, and 1976, is in the offing. The warning signs are all there — practitioners are arguing that different meanings should be given to the same terms in different contexts, industry players are opting out of the Act’s provisions in private agreements, and the current Act no longer serves any of its constituencies very well. Those constituencies include not only creators and distributors, the primary movers behind previous reform efforts, but now also device makers and, increasingly, ordinary users of copyrighted works, who in the past were treated by copyright law with benign neglect. Now, as evidenced by the RIAA lawsuits and YouTube notice and takedowns, consumers are no longer below the fray; they are getting drawn into the battles between distributors and device makers.
What can legal scholars offer the copyright revision process? Litman was not optimistic that the legislative process would produce a worthy reform, or that scholars would get to play much of a role in it, but she offered three goals the ideal “Copyright Act of 2026” should meet.
First, Litman argued, the revised Copyright Act should be simple enough that a non-lawyer can understand what is required of them. I’ve made a similar argument before myself. Only a short and simple Act will enable ordinary consumers to understand what copyright law requires and internalize those norms, so that they are self-enforcing. When it comes to the regulation of individual behavior, self-enforcement is what does most of the work.
Second, Litman argued that the rewards that copyright law provides to distributors (i.e., copyright owners, after the original creators transfer their rights) should be proportioned to the cost of distribution. In other words, if distribution over the Internet is nearly free, the revenue stream distributors are able to extract from it should be similarly small. Otherwise, Litman argued, copyright law perversely encourages the preservation of inefficient and costly means of distribution, and it further incentivizes distributors to extract as much revenue as possible from those channels, leading to all of the “bad behavior” by copyright owners that has college students up in arms.
Third, Litman argued that the revised Act needs to expressly protect ordinary “readers, listeners, and viewers” of copyrighted works by providing them with carved out “breathing room” within which to act, rather than simply relying on the “white spaces” of the Copyright Act (my term, not Litman’s) to safeguard their interests. For example, Litman would support an exemption in copyright law for private, noncommercial personal uses.
What are the odds that such a revision will ever be adopted? Litman is not optimistic. Nevertheless, the exercise seems useful in my opinion. Litman began her talk by noting the widening gulf between copyright scholars and practitioners, who increasingly regard each other with mutual suspicion or even contempt (a phenomenon noted with respect to legal scholarship generally by Judge Harry Edwards more than a decade ago). Part of the fault for this, I believe, lies with copyright scholars. It is very easy — and considerably more fun — to criticize, but very difficult to come up with constructive solutions, even broad-brush goals like those sketched out by Litman in her talk. As a result, most of the scholarship about copyright law today is relentless criticism of existing doctrine, with either no proferred solutions at all or half-hearted wishlists posing as solutions. “Real copyright reform” involves preserving the underlying rationale for copyright — promoting the creation and widespread distribution of creative works — while jettisoning the flawed assumptions and perverse incentives under existing law. Most scholars skip straight to that second bit.
I read Litman’s most recent work, including her talk yesterday, as nudging copyright scholars towards the first, and most difficult, bit — that of offering workable solutions in the face of coming reform. And even though I might disagree with some aspects of Litman’s proposals, that is one goal I wholeheartedly endorse.