Litman on the Prospect of Copyright Reform
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.
(This is the third in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)
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