One unfortunate consequence of shifting the emphasis from balance to control is that every copyrighted work contains elements which are not copyrightable. No author can copyright basic ideas or facts — only the particular manner of expressing them. Yet when access to works is tightly regulated, then access to uncopyrighted facts and ideas is also regulated. In this way, the traditional “do not copy” restriction has become one of “do not use in any manner which we have not explicitly authorized you for.” That is why current copyright laws are so nonsensical — people realize that corporations are limiting the public’s access to things they deserve to see and hear.
One clear example of this involves the attempts to create copyright protection on music CDs. These efforts prevent people from playing their CDs in many computers, even though they have legally purchased the music. Even worse, they cannot copy the music for their own use. Most people believe that legally copying music they own and for their own private use should be allowed. The music industry, however, does not. The music industry wants to have control over how people access the music they have already purchased — all of the time, everywhere.
The fact that copying might be used to pirate music is enough for them to stop it, regardless of how that might affect legal usage. And why not? As far as they are concerned, “legal usage” only includes usage which they specifically authorize, nothing more. If they don’t want to authorize you to play the music in certain devices, you’re out of luck and it doesn’t matter that you won’t be making money from it or that you won’t be hurting their profits. They have already done this with DVDs, prohibiting people from playing the discs in any but “authorized” players and attacking anyone who wants to try to let people play legally purchased DVDs in “unauthorized” machines.
So what’s to be done? Litman argues that the very notion of “copy” in “copyright” needs to be rethought. Copyright laws need to be formulated in a way that even young people can understand, allowing them to clearly see what is and what is not legal. Where we need to start, then, is with what the public actually believes:
- “Most people seem to believe that the copyright law draws a distinction between exploitation of a work for commercial purposes and consumption of a work for private purposes ... despite the fact that that’s never been the law, and despite eighty-five years of concerted educational efforts.”
Thus, the line between legal and illegal should be drawn between those uses which undermine an author’s limited rights to commercially use a work and those which do not:
- “Making money (or trying to) from someone else’s work without permission would be infringement, as would large-scale interference with the copyright holders’ opportunities to do so. That means that we would get rid of our current bundle-of-rights way of thinking about copyright infringement. We would stop asking whether somebody’s actions resulted in the creation of a “material object ...in which a work is fixed by any method now known or later developed” and ask instead what effect those actions had on the copyright holder’s opportunities for commercial exploitation.”
Will any of these changes take place?
Litman is not very confident that they will — she believes that the current legal process of how laws are made are too entrenched and that lawmakers aren’t interested enough to educate themselves and become the public representatives they are supposed to be. Her primary hope is that the public will continue to ignore laws they don’t understand and don’t believe in.
Although this large-scale “civil disobedience” is not organized, it may eventually cause the industry representatives to advocate legal changes which benefit the public simply because they won’t have any choice — better to craft laws people will actually follow then laws which are ignored at every level. In the long run, that’s the best method of the industries to avoid genuine piracy. Their fear of public backlash may be one reason why they aren’t saying too much publicly about which CDs have had their ruinous copy protection placed on them.
Copyright issues are very complicated, but they are now affecting the public more and more. It is important to understand what they are, what they tell us, and why they exist in their current form. Litman’s book is exactly what the average person, not trained in the law, can use to learn from.
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