APPENDIX 3.-JESSICA LITMAN, "COPYRIGHT LEGISLATION AND TECHNOLOGICAL CHANGE," OREGON LAW REVIEW, VOL. 68, No.

Mr. Huddleston. The gentleman realizes that this is a highly
technical subject and one that the ordinary Member is not quali-
fied to deal with?

Mr. Bankhead. I understand that.

Mr. Huddleston. And that it is impossible to write a bill on this
subject on the floor of the House. It is impossible to do it with
any satisfaction.

Mr. Bankhead. In reply to that, permit me to state it is apparent
to me that it is impossible to write a bill in the committee.
Mr. Huddleston. Let us dismiss the subject, then.'

T

THIS is a story about private parties, vested interests, and the inexorable pace of technological change. As of this writing, there are nineteen copyright bills pending before Congress. The number is typical. Throughout this century, members of Congress have introduced innumerable copyright bills, held hearings on many, reported some, and enacted few. In the past few years, Con

• Associate Professor of Law, University of Michigan. B.A., 1974, Reed College, M.F.A., 1976, Southern Methodist University; J.D., 1983, Columbia Law School. I would like to thank Jonathan Weinberg, Bruce Frier, Jane Ginsburg, James Boyd White, Jack Kernochan, Becky Eisenberg, Alex Aleinikoss, Pamela Samuelson, Avery Katz, Joel Seligman, Fred Schauer, Don Herzog, Doug Kahn, Chris Whitman, Lee Bollinger, Ralph Brown, William Pierce, and Harry Litman for their helpful comments on earlier versions of this article.

175 CONG. Rec. 11,072 (1932).

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[Vol. 68, 1989] gress has been inundated with proposals to revise copyright law in light of new technology. That, too, is typical.

Recent commentary reflects a dispute over whether the copyright statute can adjust to the current climate of rapid technological change. One camp argues that current technology differs profoundly from prior development and calls into question the assumptions on which our copyright laws are based.' Another camp insists that copyright law has always faced the problem of technological change and accommodated it with remarkable success. The current challenge, the argument continues, is not qualitatively different from previous challenges, and the copyright statute is equal to the task. Both camps rely heavily on received wisdom about the his

2 See, e.g., Copyright Issues Presented by Digital Audio Tape: Joint Hearing before the Subcomm. on Patents. Copyrights and Trademarks of the Senate Comm. on the Judiciary and the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary, 100th Cong., 1st Sess. (1987); Copyright and New Technologies: Hearings before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. (1987); Home Video Recording: Hearings Before the Senate Judiciary Comm., 99th Cong., 2d Sess. (1987); Home Audio Recording Act: Hearings on S. 1739 before the Senate Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. (1986); OTA Report on Intellectual Property Rights in an Age of Electronics and Information: Joint Hearing before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary and the Subcomm. on Courts. Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary, 99th Cong., 2d Sess. (1986); Copyright and Technological Change: Hearings before the Subcomm. on Courts. Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary, 98th Cong., 1st Sess. (1985). See also Kastenmeier & Remington, The Semiconductor Chip Protection Act of 1984: A Swamp or Firm Ground? 70 MINN. L. REV. 417, 424-30 (1985) (describing proposed copyright amendments preceding the enactment of sui generis protection for semiconductor chips); Olson, The Iron Law of Consensus: Congressional Responses to Proposed Copyright Reforms Since the 1909 Act, 36 J. COPYRIGHT Soc'Y 109, 110-11, 125-30 (1989) (summarizing proposed legislation).

See Kost, The End of Copyright, in INTELLECTUAL PROPERTY RIGHTS IN AN ELECTRONIC AGE: PROCEEDings of the Library of CONGRESS NETWORK ADVISORY COMM. Meeting, APRIL 22-24, 1987, at 19 (Network Planning Paper No. 16, 1987) (hereinafter Network Planning Paper No. 16]; Fleischmann, The Impact of Digital Technology on Copyright Law, J. PAT. & TRADEMARK OFF. SOC'Y 5 (1988). See generally OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, INTELLECTUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND INFORMATION (1986) (hereinafter OTA REPORT).

See. e.g.. Baumgarten & Meyer, Program Copyright and the Office of Technology Assessment (pts. 1 & 2), 4 THE COMPUTER LAW. 8 (Oct. 1987), I (Nov. 1987); Marsh, Fair Use and New Technology: The Appropriate Standards to Apply, 5 Cardozo L. Rev. 635 (1984); Oman, The Copyright Law: Can it Wrap Itself Around the New Technologies? in Network Planning Paper No. 16, supra note 3, at 27; see also Davidson, The Black Box Approach to Software Copyright Infringement, 3 THE Computer Law. 25, 27-28 (March 1986) (suggesting that copyright protection be extended to recombinant DNA).

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277

tory of the interaction between copyright and technology. Both, therefore, proceed on the assumption that copyright law has been effective, until now, in assimilating technological development; in fact, it has not.

Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future," the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.' In this Article, I suggest that the nature of the legislative process we have relied on for copyright revision is largely to blame for those laws' deficiencies."

5 See, eg, Baumgarten & Meyer (pt. 2), supra note 4, at 2-7; Marsh, supra note 4, at 647.

• See, e.g.. House Comm. on THE JUDICIARY, 88th Cong., 1st Sess., CopyriGHT LAW REVISION PART 2: Discussion and Comments ON THE REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL Revision of the U.S. COPYRIGHT LAW 2932 (Comm. Print 1963) (hereinafter CLR Part 2] (colloquy); id. at 273-77 (written remarks of Walter J. Derenberg, U.S. Copyright Soc'y); STENographic RepoRT OF THE PROCEEDings of the Librarian's Conference on Copyright, Ist Session, IN NEW YORK City, May 31-JUNE 2, 1905, at 45-48, reprinted in 1 E.F. BRYLAWSKI & A. GOLDMAn, Legislative HISTORY OF THE 1909 COPYRIGHT ACT, at pt. C (1976) (hereinafter COPYRIGHT Conference, 1ST SESS.) (colloquy).

"See, e.g., Ebenstein, Introduction to S. ROTHenberg, Copyright Law: BASIC and Related Materials, at xv-xx (1956); Solberg, Introduction to R.C. DEWOLF, AN OUTLINE OF Copyright Law at xix-xxiv (1925); Ashby, Legal Aspects of Radio Broadcasting, 1 Air L. Rev. 331, 342 (1930); Chafee, Reflections on the Law of Copyright, 45 COLUM. L. Rev. 503, 503 (1945); Cramer, Some Observations on the Copyright Law of 1976: Not Everything is Beautiful, I Comm./Ent. 157, 164-66 (1977); Fleischmann, supra note 3, at 24-26; Kupferman, Rights in New Media, 19 Law & ContEMP. PROBS. 172, 172 (1954); MacDonald, Technological Advances and Copyright, 8 BULL. COPYRIGHT SOC'y 3 (1960); Oman, Software as Seen by the US Copyright Office, 28 Idea 29 (1987); Stern, Reflections on Copyright Law, 21 N.Y.U. L.Q. 506, 512 (1947); Toohey, The Only Copyright Law We Need, WILSON LIB. BULL., Sept., 1984, at 27. See generally OTA Report, supra note 2.

& There has been a bumper crop of recent literature propounding theoretical models of the legislative process. See, e.g., Easterbrook, Statutes' Domains, 50 U. CHI. L. Rev. 533 (1983); Eskridge & Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. Pitt. L. Rev. 691 (1987); Landes & Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & Econ. 875 (1975); Macey, Promoting Public Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. Rev. 223, 227-33 (1986); Popkin, The Collaborative Model of Statutory Interpretation, 61 S. CAL. L. REV. 541 (1988); Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. Rev. 263 (1982);

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[Vol. 68, 1989] To solve the dilemma of updating and simplifying a body of law too complicated for legislative revision, Congress and the Copyright Office have settled on a scheme for statutory drafting that features meetings and negotiations among representatives of industries with interests in copyright. That scheme dominated copyright revision during the legislative process that led to the enactment of the 1909 Copyright Act. 10 Congress and the Copyright Office continued to rely on meetings and negotiations among interested parties

Mikva, Foreward to Symposium on the Theory of Public Choice, 74 VA. L. Rev. 167 (1988).

Because this literature has focused on explicating the birth of a hypothetically typical statute, it has paid little attention to the myriad processes accompanying the enactment of actual statutes. Thus, while the models provide useful pedagogical tools for abstract discussions of separation of powers, they tell us remarkably little about the legislative process because they do not take as their task the examination of any actual legislative processes. Rather, they replace the traditional fictions of legislative intent with alternative fictions that may challenge the mind but are no more descriptive of any actual process culminating in legislation than the fictions they seek to displace. Until recently, the debate omitted any empirical examination of how particular statutes came to be the law. For an articulate critique of the empirical bases of the public choice literature, see Kelman, On Democracy Bashing: A Skeptical Look at the Theoretical and “Empirical" Practice of the Public Choice Movement, 74 VA. L. Rev. 199 (1988).

In my examination of the legislative process that has yielded copyright statutes, I shunt most of these models aside. Instead of addressing the theoretical legislative process literature directly, I describe an actual legislative process that does not fit neatly into any of the propounded models.

It has been a commonplace among representatives of interests affected by copyright that the subject is so complicated most members of Congress cannot understand it. See. e.g., COPYRIGHT CONFERENCE, 1ST SESS., supra note 6, at 145 (remarks of Herbert Putnam, Librarian of Congress); CLR PART 2, supra note 6, at 5 (remarks of Abraham Kaminstein, Register of Copyrights).

There seems to be no reason why copyright law should necessarily be too complicated for members of Congress to draft. Congress has, after all, frequently addressed its attention to matters, such as the tax code, that are at least as complex. Copyright legislation, however, has never been accorded the congressional staff or resources available for legislation on politically sensitive issues like tax or military appropriations. It may be that the impression that members of Congress cannot or will not spare copyright sufficient time to gain a thorough understanding has been a self-fulfilling one.

10 Copyright Act of March 4, 1909, ch. 320, 35 Stat. 1075 (hereinafter 1909 Act), repealed by Pub. L. No. 94-553, 90 Stat. 2541 (1976). See, e.g., Revision of Copyright Laws: Hearings Before the Joint Comm. on Patents, 60th Cong., 1st Sess. 365-69 (1908). reprinted in 5 E.F. BRYLAWSKI & A. GOLDMAN, supra note 6, at pt. K [hereinafter 1908 Hearings); Copyright Hearings: Arguments on S. 6330 and H.R. 19853 Before the Joint Comm. on Patents, 59th Cong., 1st Sess. 26-29, 31-33, 58-60, 68-70, 77-78, 88-90, 97, 154-67 (1906), reprinted in 4 E.F. BRYLAwski & A. GoLDMAN, supra note 6, at pt. J [hereinafter Dec. 1906 Hearings]; Arguments on S. 6330 and H.R. 19853 Before the Joint Comm. on Patents, 59th Cong., 1st Sess. 3-7, 20-21, 33-39, 77, 151-52 (1906), reprinted in 4 E.F. BRYLAWSKI & A. GOLDMAN, supra note 6, at pt. H (hereinafter June 1906 Hearings).