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My father is fond of telling me a parable about the roads here in Missouri. I have no way of knowing if the story is true, but it seems reasonable.

Once upon a time, he tells me, there were a lot of passing zones on the highways—the broken stripes on one or both sides of the road that signify there is enough visibility that one car may dare to pass another on that stretch of road. And life was good.

But subsequently, due to a new restriction in visibility requirements or for some other unknown reason, many of those passing zones were painted out. But drivers who remembered they used to be considered safe passing zones continued to pass on them as if nothing had changed—and subsequently, drivers began having a lot less respect for, and hence flaunting, any no passing zone in general.

Something like this has been happening with copyright law.

It used to be that copyright law applied exclusively to commercial production of copies. Restrictions on how authorized works could be read were few and far between.

But in recent years, changes have come about such as the Digital Millennium Copyright Act, which made it illegal to break DRM even for the purpose of reading a work you had purchased the right to read. The content industry has pushed for other changes as well, and taken legal actions involving seemingly indiscriminate lawsuits for sums of money out of all proportion to the nature of the offenses.

As a result, there has been a considerable loss of respect for copyright law, and for the copyright distributors who are the main ones seen to benefit from it. Tens of thousands, hundreds of thousands, possibly even millions of people think little of flaunting it by distributing or downloading works illicitly through peer-to-peer networks, or using DRM-cracking software to strip the digital rights management from media they buy—and they don’t even feel they’re doing anything “wrong”.

nies-litman When laws seem to make little sense, people stop respecting them. This is one of the points that law professor Jessica Litman makes in her new paper “Real Copyright Reform” (PDF).

Copyright law, says Professor Litman, is too complex, and in some cases nonsensical:

If you tell the owner of a sports bar that the copyright statute allows him to install up to six television sets in his sports bar so long as the picture is turned off, but only one television set if the picture is turned on, he will understandably tell you that the law is looney.

It favors distributors (publishers, movie studios, record labels) at the expense of creators and consumers. It is the result of repeated modifications, each one involving entrenched interests reaching in to tweak the new laws to keep said interests entrenched and make it harder for new entrants. It can’t be understood without a copyright lawyer.

It needs to be reformed.

The problem is, the entrenched interests are still entrenched, and are spending millions of dollars on lobbyists to make sure that they remain that way. But hope comes from the fact that the new distribution capabilities of the Internet have given more consumers an interest in copyright-related issues than ever before.

Over the last decade, with the rise of the Internet, YouTube, and the increasing ability to create and publish content without needing an intermediary, many consumers have been waking up to the harsh reality that copyright laws are increasingly restricting what they can and cannot do with the media they supposedly “own”.

Lobbyists may have money, but consumers have electoral power, and the ability to make themselves heard by writing their congressmen. If real copyright reform seems like a possibility, many of these people will make themselves heard. (Personally, I am waiting for the next time Disney tries to extend copyright law again. Will consumers be so complacent this time around?)

I find Professor Litman’s paper quite insightful in its examination of the problems with copyright today, and her proposals for copyright reform quite interesting. I highly recommend reading it in full.

Litman recommends recasting copyright as a content-creator’s right to control commercial exploitation, rather than the five different types of rights currently considered by law. (Then she goes into more detail about how to make this compatible with existing licensing agreements.)

As even Litman herself admits, these reforms are unlikely to see adoption. However, they do serve to get people thinking and talking about the issues, and that can only be a good thing.

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