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October 30, 2007

Copyright Conundrum: An Interview with Professor Litman

By Sarah Rizzo

Perusing the CD aisles of Borders or Barnes & Noble, it is impossible not to notice the baroness of what used to be a sea of music browsers. In the mid- to late 1990s, newly emerging technologies like Napster brought on a short-lived heyday of free music. Indeed, few took advantage of these technologies more than college students before industries, lawyers, and law professors started paying attention.

Today, the legacy of Napster remains with iTunes and YouTube occupying much of our time on computers, iPods, and iPhones. Whatever one’s position, everyone can agree that copyright law has been changing as rapidly as technology.

The RG sat down with Michigan Law’s copyright guru, Professor Jessica Litman, in search of guidance for aspiring law professors and to hear about her contributions to an area that is close to many of our desktops.

Res Gestae: When did you know you wanted to be a law professor and why?

Professor Jessica Litman: Some time in my first year of law school, because I hated it. I thought law school was just the most awful experience and it seemed to me that it didn’t have to be as bad as what I was going through. So, that’s why.

RG: Did things change?

JL: In the long term, yes. In the short term, no. I started teaching in 1984 and what I discovered was that, for the most part, my students weren’t interested in a law school that was kinder, or gentler, or more open to different kinds of ideas. What I had hated about law school the most: I went to Columbia, and I got there with a class of a whole bunch of really interesting, unusual people; and, then over the three years I was there, I watched them all turn into gingerbread cookies. I saw all of these interesting people become less and less interesting and it made me sick in my soul to see that. So, I thought if I were a law professor, I could give people the tools to be whatever kind of lawyer they wanted to be without changing their essential personality. But, when I started teaching, I discovered that most of my students couldn’t be less interested in that. They had a vision of what a lawyer was like and they wanted to turn into that person. So, in that sense, I was, I expect, a complete failure at trying to do something different.

Over the years, no thanks to me, law students have changed. They no longer want to turn into gingerbread cookies. And so I discovered that I enjoy teaching them much more than I did 20 years ago. At the same time, legal education would have done that without me. I didn’t need to be here for that to happen. People needed to get interested in the law who were more interesting and more interested in other things than perhaps was the case in the early 1980s.

RG: Do you find that Michigan is different from the other law schools you’ve taught at?

JL: Every law school is different. All law schools have their own pathologies and you get used to the ones where you are. One of the nice things about Michigan is that the students are nicer to each other than at many other law schools. That was also true at Wayne [State]. The Wayne students are just really nice and really hard working. Michigan students are not interested in competitiveness to the point of being complete assholes. At some schools that I’ve taught at that’s not true.

RG: What inspired you to write your book?
JL: It was suggested to me when I was a Visiting [Professor] at American [University] by Jamie Boyle, who was a professor there…. He is now a professor at Duke [University]. He’s just spectacular.… This was ’97-98 and I was down at American and in Washington and watching the Digital Millennium Copyright Act get enacted by Congress. We were talking to journalists about some of the things that were disturbing us about what was happening. The reporters were saying “I get it, but I can’t get my editor to get it. I can’t figure out how to get my editor to understand that this column should run, that it should get lots of column inches and run on the first page.” Jamie suggested to me that in some of my own writing was the germ of a way to explain this story to a much wider audience than just the folks who read law review articles. So, he really encouraged me to mine the last ten years of my work, and also the current stuff I was doing watching the statute get passed, to try and write a book that was accessible to an audience of smart people who aren’t necessarily lawyers.

RG: Have you talked to non-lawyers who’ve read your book and really liked it?

JL: Oh yeah. It’s quite wonderful. I get fan e-mail from complete strangers who say, “I just read your book and I have to tell you: thank you for writing it.”

RG: You began teaching at the beginning of the digital and internet revolutions. How have changes in your field affected you?

JL: Oh, it’s just fun! I learn new things every year because the law changes and the world changes. It’s seriously cool.

RG: In your book, you mention that Washington was behind the times with the internet and digital technology. Why do you think that was?
JL: Lawyers thought of computers as those things that sat on their secretaries’ desks. So, without experiencing what networked digital communication can do, it’s hard to think it up. If you look at all of the science fiction books from the 50s, the 60s, the 70s, the 80s, they missed the internet! They were talking about robotics, they were talking about a lot of things, but all of the visionary science fiction writers, at least in English, it never occurred to them to imagine the internet. It was, I think, just a failure of imagination; a sense that the world is always going to be pretty much the way it had been. As a result, as a whole generation of college students were getting free access to the internet, … the folks who ran things just thought: “oh anything on the internet is free, it’s all garbage, it doesn’t have any value, no one would want to read that.” They would still be saying that about what’s up on YouTube, except that folks are watching that, and Apple thinks enough of it to put a YouTube button on its iPhone, and so forth. But, the idea that, if costs were driven down low enough so that you didn’t need a printing press to communicate with people and that people would be generating content to interact with each other and would enjoy reading that – that was just a revolutionary idea in 1990 and it didn’t occur to people.

RG: What do you think of the recording industry’s choice to sue students for sharing music?

JL: That never should have happened. In the best of all possible worlds, peer-to-peer file sharing, in my view, should not be illegal. Canada, indeed, interprets its law so that at least downloading is not illegal. Really, until the Napster case, whether peer-to-peer file sharing was legal was an open question. There is a provision of the copyright statute that allows consumers to make non-commercial copies of recorded music and whether it applied to peer-to-peer file sharing was up in the air. Congress had intended it to give consumers a free pass for all copying of recorded music. But, congress hadn’t imagined how devastating it could be if 60 million people could make a non-commercial copy. The 9th circuit decided that, no, that’s not legal, and since then every court has pretty much agreed.

The recording industry is suing individuals partly for the deterrence value and partly because it’s actually generating some amount of money. What is being reported as the average settlement is between three and five thousand dollars. The cases bring in more than they cost to bring, so long as they settle. If you’re not going to court, if you’re just going through the settlement center, it ends up generating a small amount of money. Thinking up and starting this whole campaign cost a lot of money but, to the extent there are figures now, it indicates that it may be generating some small income. They need to do that because what they really want is to get the intermediaries. What the recording industry wants is for universities to stop peer-to-peer file sharing, computers to block peer-to-peer file sharing, sites that enable peer-to-peer file sharing to stop doing it, bit-torrent to incorporate some kind of filter, and so forth. Because copyright is set up as exclusive, enumerated rights, they can’t actually get the intermediaries unless they are facilitating actual illegal action by end users.

RG: So they’re not really after us …

JL: Initially they sued the intermediaries and when that didn’t work they started coming after you guys. Now, I’m not sure they are willing to break the habit. There are any number of advantages to being able to announce that they’ve gone after another 2000 college students: it scares you; it’s not fun for the general counsel’s office here which, however it feels, has got to counsel you that the cheapest thing is to settle the case and stop doing it; and it allows them to demand structural changes or changes to the design of consumer electronics and of networks to say, “look, there is all this yucky illegal use happening, we have to sue these consumers, nobody likes it; why don’t you just design your networks to block all this traffic?” It gives them leverage that is useful politically.

RG: What are the biggest copyright-related lobbies?

JL: There are giant lobbies. … You’ve got the music industry, and that includes separately the performers, the composers, the record companies, and music publishers – the folks who own the copyright on music, and their interests aren’t always aligned. The record companies want to make sure that the record companies get paid a lot and composers and performers don’t. Performers want to make sure they get a cut. There are the broadcasters, who have to pay royalties to people. There are the webcasters (who are not broadcasters -- they don’t use spectrum; they use the internet; they use glass). The broadcasters would like the rules for the webcasters to be harder than the rules for the broadcasters because that would give the broadcasters a comparative advantage. And there is cable-TV and satellite. So, there is all that. We have the software publishers. We have the hardware manufacturers. We have the consumer electronics industry. We have the telephone companies, who are incidentally the internet service providers, and the cable companies who are also internet service providers, and the WiFi telephone stuff.

All of these folks are trying to lobby. They are trying to preserve the advantages they have, get rid of advantages they don’t have, and incidentally protect themselves against whatever new medium is out there in the future. They don’t know what it is yet, but they know it’s going to cut into their market share. So, they want to write these rules so that they don’t have general application.….

RG: I can imagine. What do you think about the continual expansion of the length of the copyright duration?

JL: I think it’s bad. I wrote a brief in the Eldred case, signed by 54 law professors, which is posted on my website if you should want to take a look, saying that not only was it bad but it was unconstitutional. But, the Supreme Court said I’m wrong.

RG: What is your personal view on what the limit of fair use should be?

JL: In today’s world, I think we’re asking fair use to do too much. If you look at copyright historically… do you know what fair use is?

RG: That I’m allowed to use this without incurring…

JL: Precisely. If you make a photocopy of a law review article to study, you’ve made a copy. A court would say that’s fair use -- you’re making it for the purpose of scholarship and research, you’re not undercutting the market, and so forth. We’re asking fair use to protect people who do stuff like that – copying for themselves. We’re also asking for it to protect what you might call transformative uses, parodies; some of them the kinds of things that the authors of the underlying works wouldn’t like to license. We’re asking it to cover criticism. The thing about fair use is that the amount of territory it’s covered historically has been pretty constant. So, if you stretch it in one direction here, you tend to lose it over there. It’s not that elastic.

What has happened in the past 30 years is that the scope of copyright rights have expanded, so that more pressure is being put on fair use. No, this isn’t something congress did. Congress enacted the statute in 1976. What’s happened is that courts have read it somewhat more expansively. So, you have a non-statutory expansion of what rights mean. And, in addition, copyright owners have claimed laRGe rights without contradiction. For example, when the recording industry sends you a letter and says: “you have engaged in peer-to-peer file sharing. You can either pay us $5,000 and admit your wrong or we can go to court. If we go to court, we’ll be able to collect $150,000 for every song on your hard disk and you’ll have to pay $50,000 to a lawyer. Or, you can give us $5,000 and we’ll go away and you won’t hear from us again.” Unsurprisingly, most people decide to take the settlement route, but what that means is that we don’t give courts the opportunity to say: “Well, does this make sense? What did congress have in mind?” So that rights are, as a practical matter, getting laRGer as a result of grandiose claims rather than adjudication. And so that has put more pressure on fair use.

I suppose, what I personally if I ruled the world would like to see, is a more constrained definition of each of the exclusive copyright rights. So that the right to reproduce, and adapt, and perform publicly, have clearly understood boundaries so that we’d be asking fair use to do less because it works best when it applies to exceptional cases. This is in part because, to the extent that you have to go through a trial on the merits to figure out whether a use is really fair or not, that’s hideously expensive and it’s not fair. So, what I’d rather see is judges cutting back on the expansive definitions of copyright owner rights. I think they will. If you follow this field long enough, everything’s a pendulum. Things expand and then they contract, and then they expand and then they contract.

RG: What is it like working in a profession that is so heavily male?

JL: It’s much better than it was. When I first was here, it was very difficult, for lots of reasons. There weren’t many women, and many of the older men on the faculty didn’t really have an image in their head of a law professor who was a woman. Becky EsengbeRG and I started at about the same time, and while we didn’t look much alike, our colleagues kept getting us mixed up. That was reasonably hard. Women students who needed professors to talk to had to come to the ones that were here and there weren’t very many of us, and so forth. There are many more women here now, and it is, I think, a much more interesting and more comfortable place because of it.

In addition, IP is a field in which women dominate. If you get anybody’s list of the top ten IP professors in the country, more than half of them are going to be women. It’s an historical accident. It’s because, in the 1980s when most of us were entering the field, copyright, patent, and trademark were fields that were represented on very few law schools’ permanent faculty. Instead, they had adjuncts teaching them and the adjuncts, for the most part, weren’t writing. And so, a whole lot of women who were interested in IP came into teaching, and it was a course that was available to be taught.
RG: Any surprising fact about yourself that students might not know?

JL: Because of my mother, my career in legal education aRGuably started while I was still a child. She began teaching trial practice at the University of PittsbuRGh Law School (her alma mater) in the 1960s, and enlisted me to be the injured plaintiff in a number of mock trials.

*****

Whether she’s playing an injured child plaintiff or weighing in on copyright law, Professor Litman is sure to keep apace of a field that changes as quickly as our internet browser speed.