Toward a "New Deal" for copyright in an Information Age

Jessica Litman' believes the public needs a very good copyright lawyer, and if I have not mistaken her intentions, she is volunteering for the job (pp. 70-73). A century of Congressional deference to industry-negotiated compromises has produced, she argues, a copyright law that is both incomprehensible and unfair.2 This incomprehensibility might be tolerable if copyright law governed only commercial relations among industry participants, all of whom have copyright counsel. To the extent that copyright law applies to the conduct of ordinary persons,' its incomprehensibility presents serious difficulties.4 Moreover, to the extent that copyright law makes illegal many ordinary activities of individuals5 for example, making private copies of music for oneself or to share with a friend or forwarding articles to friends via the Internet it has become unfair as well (pp. 19, 28). As the public's copyright lawyer, Jessica Litman advises us not to accept the current deal (p. 20). In Digital Copyright, she outlines a framework for a copyright law that would be a new and better deal for the public and would be short, comprehensible, and normative in character (pp. 180-84). While Litman does not advocate lawlessness until the new deal has been adopted, she makes clear that she does not object to widespread noncompliance with copyright law in the meantime. In fact, the pub-