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

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.

For example, bars and restaurants that measure no more than 3,750 square feet (not including the parking lot, so long as the parking lot is used exclusively for parking purposes) can contain no more than four TVs of no more than 55 inches diagonally for their patrons to watch, so long as there is only one TV per room. The radio can be played through no more than six loudspeakers, with a limit of four per room. That is, unless the restaurant in question is run by "a governmental body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization." Then it’s OK to use more speakers.

This astonishingly elaborate and expansive copyright regime isn’t fed only by statutes, of course. Judges’ interpretations account for much of its reach. The notion of "contributory" copyright infringement—in essence, aiding and abetting copycats—is entirely judge-made. In conjunction with a statutory limit on creating not just copies but "derivative" works of a copyrighted original, a theory of contributory infringement led two courts to outlaw the production by third parties of cassette programs designed to be inserted into the belly of Teddy Ruxpin talking stuffed animals. The idea was that by pushing the play button when a non-Teddy Ruxpin story tape was inside the creature, children would be creating a contraband derivative "audiovisual work comprising animated plush toy bear with unique voice." Since toddlers are largely unsusceptible to cease-and-desist letters, it fell to the cassette manufacturers to stop providing the ready means for the kids’ illegal behavior.

For all of its detail, however, Title 17 remains stubbornly vague, recalling Woody Allen’s indictment of a bad restaurant: "The food at this place is really terrible...and such small portions." Including Woody Allen’s quotation here is probably fair use, so it’s OK to repeat it without his permission—but we’d have to risk a lawsuit to be sure. No wonder most publishers proceed as if fair use doesn’t exist at all, asking permission to use every quote—or failing that, doing without.

Title 17’s copious yet unfulfilling amount of detail used to trouble only professional (re)publishers and their lawyers. Title 17’s reach has tended, as a practical matter, to leave individuals unaffected. The examples above might make for cocktail party curiosities, but whatever their indirect public effects—a craned neck as a result of trying to watch the sole television in a large barroom, or a child deprived of the full potential range of Teddy Ruxpin stories—they don’t directly constrain individual behavior, which has been de facto governed by a second regime of reasonable practice.

The public has instinctively cabined its potentially copyright-infringing urges not through knowledge of the law but thanks to the combined weight of conscience and convenience. It’s a hassle to photocopy a book cover to cover, so most of us don’t bother to do it, and those who do are possibly such cheapskates that they wouldn’t buy the original to begin with. (Kinko’s—well aware of and effectively regulated by Title 17 after losing hundreds of thousands of dollars in a 1991 lawsuit brought by publishers over a dozen course packs involving copies of book chapters—won’t do it on someone else’s behalf, for fear of contributory copyright infringement liability.) Still others might actually think it wrong to make wholesale copies even if it’s easy. They might choose to copy only a few pages, or to simply buy the whole work.

As Title 17 has expanded, the corporate and individual regimes have diverged further and further, at odds but not in friction. The former is subject to increasing numbers of exceptions, counter-exceptions, contractual agreements and licenses among lawyers. The latter bumps along simplistically, limited by the amount of copying anyone could or would do as a practical matter. Those technically illegal activities thus escape the attention of publishers.

Where the Copyright Rubber Meets the Road to Court

When points of friction have threatened, the publishers have taken quick action, ferociously fighting against any perceived legal or practical encroachment on copyright’s rights and the cash flows associated with it. Recall the reaction of the Motion Picture Association of America (MPAA) to the prospect of a VCR. "The VCR is to the movie industry what the Boston Strangler was to a woman alone," warned Jack Valenti, then (and still) president of the powerful group. In the now-famed Sony case of 1984, the U.S. Supreme Court held in a 5-4 decision that the VCR was not an illegal instrument of contributory copyright infringement. Valenti to this day rues the loss of the MPAA’s position despite the comparatively staggering revenue gleaned from video rentals ever since. He says that the MPAA didn’t want to impede the VCR’s deployment; it simply wanted to be able, through a favorable ruling, to withhold permission for sale of the technology until manufacturers agreed to a per-unit fee on VCRs and blank videocassettes that would be remitted to the publishers.

When digital audiotape recorders (DATs) threatened to enable individuals to make perfect copies of CDs, and copies of those copies, the music publishers prodded Congress into passing the Audio Home Recording Act of 1994, which required producers of DATs to incorporate the Serial Copy Management System (SCMS) in its products. The SCMS is defined nowhere in a statute that goes to the trouble of defining such words as children and parking lots. As implemented, it prevents a DAT from making a copy of a copy if the copy is digitally labeled "Do not copy me."

Taking a lesson from the loss in the VCR case, MPAA lobbyists fought for and won provisions for a tax on the producers of digital recorders and blank digital tapes. The tax revenue does not go to the government; it is remitted to publishers according to a scheme that demonstrates just how many parties wanted a slice of the pie. Title 17 now contains such gems as "2 5/8 percent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians or any successor entity) who have performed on sound recordings distributed in the United States."

Unsurprisingly, as a result of the law, DAT players were stillborn, so there were few spoils to split, which was no doubt a perfectly acceptable outcome to the publishers.

With the advent of the DVD player, manufacturers and publishers came together to create a nonprofit association that would control a "secret recipe" for decoding DVDs. Anyone who wanted to make a DVD player had to obtain the association’s recipe. It was given only in exchange for a promise that the DVD player would have certain copy protections in place—such as conveying a signal that would jam a VCR trying to record a DVD—and that the player would incorporate "regional coding," by which different continents would have different players, and the DVDs from one wouldn’t function in the players from another. This enabled DVDs to be released in different regions at different times and ensured that those licensed to sell DVDs in one region wouldn’t have to worry about having their prices undercut by sellers exclusively licensed to sell in other regions.

Enter the 800-Pound Test: The Internet

Then came the Net and the all-purpose computers attached to it. With the right software, individuals could copy digital content at arm’s length from one another, perfectly, quickly and cheaply—and the presence of a copyright symbol did little to deter them from doing so.

In theory, of course, Title 17 applies to everyone. I believe that the vast majority of uses of Napster represented indefensible infringements of copyright. Even the Sony case of 1984 included a token individual defendant, a VCR owner who was the alleged direct infringer. But copyright defenders did not demand that he pay damages or change his behavior. More recently, the publishers have sought the identities of individual users of Internet file-trading services, and brought (and settled) suits against 12-year-olds, college students and hundreds of others alleged to be contributing unauthorized files to file-swapping circles. The dragnet even caught 71-year-old Durwood Pickle of Richardson, Texas, who found out he was being sued when the Associated Press called him to write a story about it.

"I’m not a computer-type person," Pickle told the AP. "They come in and get on the computer. How do I get out of this? Dadgum it, got to get a lawyer on this." (He blamed his grandchildren for the activities, which could well insulate him from liability—but it’s a good bet he’ll settle.)

While these suits against individuals make headlines, they do not represent a wholesale strategic shift in which tens of thousands of Americans will be served with lawsuits. They are meant to set a couple of high-profile examples to add teeth to "instant messaged" infringement warnings conveyed to file-swapping service users over the services themselves, and perhaps to establish clear precedent of infringing network uses so as to maximize pressure on Internet sites and service providers that might be conscripted into the copyright wars. Network carriers and those creating network-aware applications hate to admit it, but they can influence the behavior of their users—in essence, they are the copy shops and DAT makers of the Internet. The publishers’ strategy has worked in some cases but not others.

For example, the Recording Industry Association of America successfully shut down Napster for providing services to netizens to facilitate the sharing of copyrighted and public-domain files alike, without taking steps to filter out the former. (The recording industry is not resting on its legal laurels. It is now suing the venture capital firm Hummer Winblad for daring to finance Napster under what seems to be a novel Matryoshka-doll theory of contributory contributory copyright infringement.) The industry’s suit against Napster’s technological descendants Morpheus and Grokster has, however, foundered in a thoughtful—but probably soon-to-be-overturned—district court holding and opinion that found a number of important technical differences between the two generations of software.

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