The Good (or Why Haven't We Done This Already?)

Like Prof. Picker, I did eventually get the impression I was reading a novel as I got through Netanel's book. It was good to finally reach the climax and denouement of the case he had built over the first six chapters. Maybe that emotional reaction says I'm getting too much into this stuff, or maybe it just means Netanel is good at keeping some suspense in what would otherwise be a dry book.

In any case, there were some things I'm quite excited about in this last segment, and some things I'm somewhat disappointed by. This post deals with the positive stuff; I'll put my criticisms in another post.

Incremental Changes

Netanel proposes a range of incremental changes to copyright law in his last chapter, many of which we have come up with independently in class or in other posts. Like Ruben, Netanel recommends ending the statutory damages regime, at least for some forms of infringement. Like Dan, he argues that some burdens of proof, particularly in fair use cases, should be shifted to the party alleging infringement. Like many of us have argued, he thinks the duration of copyright should be cut back. He also makes the case for renewal fees as a first cut at solving the orphan copyright problem.

All of these are excellent ideas, and could be implemented by Congress tomorrow. They should be. None are particularly big or bold moves, but all would be effective. Taken together, they might even be enough to address Netanel's core concerns. But Netanel does not stop there - he at least hints at more radical change.

Revolutionary Change?

Netanel's 6th chapter's title leads the reader to believe he advocates "remaking" copyright law entirely. He does make some broad proposals - such as the "noncommercial use levy" that would authorize but indirectly tax file sharing - but largely relies on incremental adjustments like those mentioned above. Maybe all of those, taken together, could be considered "revolutionary" in a sense, but his proposals fall short of the "blow it up and start over from first principles" approach I advocated in my first post on the book. That isn't necessarily a bad thing. Netanel's course may be wiser, or it may simply be that only incremental adjustments have any chance of actually being enacted. Given the rhetoric earlier in the book, however, I was a little disappointed to see that his legislative proposals lacked the freewheeling, iconoclastic ambition I had hoped for.

Still, they are probably a good summary of what can and should be done. Other than moral rights, which I've already discussed my objections to, I think each of Netanel's recommendations in chapter 6 should be seriously considered by Congress.

I don't feel the same way about his recommendations for the judiciary in Chapter 5, but I'll get to that in my next post.