In the second half of her book, Jessica Litman explores issues surrounding copyright in the digital age. Building off her discussion of the complicated nature of copyright law and the various nature of the relationships between the copyright holder and user, Litman concludes that “People don't obey laws that they don't believe in. Governments find it difficult to enforce laws that only a handful of people obey. Laws that people don't obey and that governments don't enforce are not much use to the interests that persuaded Congress to enact them. If a law is bad enough, even if its proponents might be willing to abandon it in favor of a different law that seems more legitimate to the people it is intended to command,” (195). So what does this mean for the future of copyright in the digital age and how might that affect libraries?
The first part of her statement harkens back to the complicated nature of copyright law. Litman repeatedly claims that the law does not make sense to the majority of people, who therefore, will not obey the law, knowingly or not (112, 113, 169). So why then, according to Litman's logic, does the law still exist? It is difficult to enforce copyright violators in the digital age, especially with regards to downloading music or sharing TV shows. Still, the RIAA continues to press suits against violators, although the number of lawsuits are dropping, and may have paid over $64 million in lawsuits to recover about $14 million (http://www.electronista.com/articles/10/07/14/riaa.paid.64m.over.three.years.to.get.14m/). Does the drop in lawsuits mean that the RIAA, as well as the major record labels, are backing off in favor of a different law or means of retaining control, such as licensing? As Litman argues on pages 177-180, the creators of all of the copyright legislation never meant for the copyright holders to have exclusive rights over every digital reproduction, as it is in disagreement with the idea of copyright being a bargain between the holder and user. Therefore, we should no longer rely on reproduction as the impetus for copyright enforcement. The record companies could make up the money for the artists by creating more streamed and downloadable digital content, perhaps through a licensed resource.
In the library world, we are already seeing many more licensed resources for music, as well as many other topics and media. Licensing is one way in which libraries may have access to more online content and is a method in which the issue of reproduction might not matter. For electronic resources and journals, the number of downloads (reproductions) is usually built into the cost of service. In terms of music, many of the services provide streamed content, as opposed to putting mp3 files online for download. Licenses, however convenient for the users and patrons, may provide additional workloads and costs for libraries and librarians. As described by Lesley Ellen Harris in Licensing Digital Content, a library should have some sort of a licensing best use policy to which the librarians are able to refer when negotiating the terms of service.
But going back to Litman and the idea of eliminating digital reproduction as a means of enforcing copyright law, how would this change the outcome of Zeidenberg vs. ProCD? Zeidenberg used copyright law as his defense because he was only copying facts. However, he did make a profit off of digital reproductions at the expense of ProCD, not to mention the fact that he had to click “I agree” to the license terms upon using the program. Setting aside the issue of profit for a moment, I think that the licensing agreement (contract law) would still take precedence in this case, even if digital reproductions were made legal and the courts would rule in favor of ProCD.
Speaking of profit, I agree with this statement by Litman: “Conventional wisdom tells us that, without the incentives provided by copyright, entrepreneurs will refuse to invest in new media. History tells us that they do invest without paying attention to conventional wisdom...many entrepreneurs conclude that if something is valuable, a way will be found to charge for it, so they concentrate on getting a market share first, and worry about the profits – and the rules for making them – later,” (173). (Litman would make a good Ferengi.)This is what is , and what has been, happening now, I believe, in terms of both copyright law and issues surrounding license agreements. The copyright holders, and related stakeholders, such as publishers and intermediaries, have historically been creating the market share and then creating the legislation to back up their desires (see Litman, chapter 3). I wonder if we will see any legislation surrounding licensing, or if the UCC or other forms of contract law will be altered for the digital age.
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