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Jonathan Zittrain's Take on U.S. Copyright Law

By Jonathan Zittrain

October 15, 2003 — CIO —

A couple of years ago I was talking with a law school colleague about cyberlaw and the people who study it. "I’ve always wondered," he said, "why all the cyberprofs hate copyright."

I don’t actually hate copyright, and yet I knew just what he meant. Almost all those who self-identify as cyberspace law scholars agree that copyright law is a big mess. So far as I can tell, federal courts experts don’t reject or loathe our system of federal courts, and criminal law experts split every which way on the overall virtue of the criminal justice system. So what’s with cyberprofs’ uniform discontent about copyright?

I think an answer can be gleaned from the tax scholars. Without decrying the concept of taxation, every tax professor I’ve met regards the U.S. tax code with a kind of benign contempt, explaining it more often as a product of diverse interests shaped from the bottom up than as an elegant set of rules crafted by legal artisans to align with high-level principles about the most just way to redistribute resources or to maximize social welfare.

Copyright is like that too, and while I hate its Platonic form no more than the typical tax maven hates tax, I find myself struggling to maintain the benign part of my contempt for its ever-expanding 21st-century American incarnation. A gerrymandered tax code primarily costs the public money—measured by overall inefficiency or extra taxes unfairly levied on those without political capital. But copyright’s expanding cost is measured by a more important, if inchoate, currency of thoughts and ideas.

The Law and the Reality: From TVs in Restaurants to Woody Allen Quotes

We live today under two copyright regimes—the law on one hand and reality as experienced and practiced by the public on the other. These regimes’ orthodoxies have become increasingly divergent, but until recently they governed completely discrete spheres.The U.S. legal regime is found within Title 17 of the federal code. It proscribes such acts as the public performance of music without payment to the composer, or the copying of books without the permission of the author (or more likely the company to whom the author long ago assigned rights).

The limits on behavior enumerated in the first regime have gone far beyond the wholesale copying of books, maps and charts covered by the first copyright act of 1790. They now extend to computer software, dances, boat hulls (delineated in a 1998 amendment as "the frame or body of a vessel including the deck, but not the rigging") and music (Congress covered performances in 1909, and copies of sound recordings in 1971). What the public can and can’t do is now described at a dizzying level of detail worthy of the most byzantine tax code.

 

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