by Jonathan Zittrain

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

Oct 15, 200323 mins

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.

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.

The puzzle for the judge was that these software products are essentially small leveragings of the core functions of the Internet itself—golden spikes that complete a railroad built by others. (The Gnutella client, a recent-vintage bane of the copyright industries, fits on a single floppy disk.) Whatever the ultimate outcome of the Morpheus case, the fact is that the Internet was built to copy things. Almost every software application that capitalizes on this central functionality is therefore a Kinko’s of sorts, and decreeing all search-and-copy software to be contributorily infringing copyright is simply too large a step for a court to take. Microsoft Windows’ “Network Neighborhood” feature, for example, is simply a way to swap files, and the company has promised that improvements to its next version of Windows will focus on indexing and finding desired material across a network.

Publishers have successfully lobbied for the introduction of widely reviled legislation to respond to this problem. The proposed legislation would require software and hardware makers to incorporate copy controls similar to those demanded of DAT manufacturers into PCs and other digital devices capable of displaying content.

But publishers are also taking the battle to other fronts, namely to Internet service providers, or ISPs. ISPs have little interest in becoming the Net police. They exist to move data around or to host it. A decently politically empowered group in its own right—think of the likes of AOL, Comcast, MCI, Verizon and, of course, Microsoft—ISPs obtained a federal exemption in 1995 from nearly any liability under state common law for hosting defamatory or other harmful content. If someone posts a message on AOL calling another company’s CEO a cheat and a fraud, depressing that company’s stock price, AOL is under no obligation to take down the posting, even if the company has pointed out its manifest falsity.

With copyright, however, there is no such blanket exemption from liability. Among a hodgepodge of individual cases going in different directions on ISPs’ liability for hosting or carrying unauthorized copyrighted material, there astoundingly remains no clear statutory answer to the question of what is legally required of ISPs. When ISPs happen to be companies or universities giving their employees or students Internet access, the problem grows. CEOs and network administrators receive literally thousands of letters insisting that they stop allegedly illegal activities on their networks. With no one able to give them credible guidance on their actual legal responsibilities, their typical response is to gravitate toward a statutory “safe harbor” and to take down challenged material—or to deny network access to anyone who is accused of bad copyright behavior.

Finally Facing Reality

How is it that IT and ISP industries easily 10 times the size of their publishing counterparts are being harnessed to the needs of their little siblings? One answer is rooted in a form of status quoism that sees the current allocation of rights and duties under copyright as “fair” and the happenstance of technical innovation that might displace it as “unfair.” The utilitarian complement to that argument is that copyright provides incentives for innovation, and if copyright is rendered ineffective, the creators create less or cease altogether.

What’s obscured in that analysis is due credit for the longstanding status quo of individual practice in spite of (and previously simply alongside) Title 17.

The Net forces us to confront the contradictions between what the law technically requires and what individuals do. Initial attempts to reconcile the two have been disappointing. Take, for example, the new phenomenon of music webcasting, a digital transmission of audio that appears to the user like a traditional broadcast—except that it’s available over a computer network on a computer screen. Under the 1909 copyright law and its progeny, a radio broadcast of a CD results in money owed to the songs’ composers for the “public performance.” No money is owed to the record company, since the CD isn’t copied. Actually copying the CD is a right typically reserved to the recording artist (which means the producing record company) under the 1971 law and its progeny, and if permission is granted (usually in exchange for money), a small amount of money is owed to the composer of the song for the creation of the mere copy, often extracted through a compulsory license.

So, a perfect question for a copyright exam circa 1997: Who should collect when a song is webcast, since it acts like a broadcast (remember the 1909 law), but technically speaking, a temporary copy of the song is made in the computer’s memory (the 1971 law)? Should it be the composer or the record company?

In 1998, Congress answered “yes.” A webcaster owes both. How much is owed to the record company? Whatever it wants to charge, if it wants to allow the webcast at all. Unless, of course, a webcaster qualifies for a compulsory license, by—and this is in the law—”transmitting during any given three-hour period no more than any of: (1) three different selections of sound recordings from any one CD, if no more than two such selections are transmitted consecutively; (2) four different selections of sound recordings by the same featured recording artist or from any set or compilation of CDs distributed together, if no more than three such selections are transmitted consecutively.”

Got that? Oh, and the webcaster must take care not to preannounce what songs are about to be played. Hew to all these rules, and you still pay—it’s just that the rate, rather than being set by the record company, is set under the law by a three-judge arbitration panel after taking weeks of testimony, so long as the panel is not (this really happened) overruled by a subsequent act of Congress setting entirely different rates.

The Internet links people together point to point, enabling individuals to broadcast as well as to consume audio streams. But they won’t broadcast if they can’t figure out how to do so lawfully, or if they can’t afford to do so after being charged twice. Cheap software lets individuals create new works from the old, mixing and matching in the finest traditions of jazz improvisation. But people won’t do it if they receive a notification of termination of their Internet service.

Yes, I hate the effects of copyright on a digital revolution that portends so much more than the banal act of ripping the tracks off of CDs. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled even beyond its paper and other analog counterparts so that it permits us to view but not print, listen but not share, read once but not lend, consume but not create.

But I can hate this situation without believing that the idea of copyright is fundamentally flawed. The framers’ vision of intellectual property (then simply called monopolies) called for built-in limits to the exclusive rights intellectual property entails, like copyright terms that expired even if a work was still of commercial value. Those who spend careers mastering today’s copyright law have become lost in its detail. Using the obscure vernacular of specialists, they keep arranging and rearranging the sticks in the bundle of rights found with Title 17, building ungainly legal Tinkertoys and then calling upon the public to be able to follow each spoke and hub.

So why should we care who gets the merchandising deal from a movie or the song tie-in on a variety show?

One reason is that the publishers’ sights are inevitably now set on the public. It is, for example, technically against the law for Girl Scouts to sing songs around a campfire without paying royalties. (The American Society of Composers, Authors and Publishers [ASCAP] tried to collect such royalties. “They buy paper, twine and glue for their crafts—they can pay for the music too,” John Lo Frumento, ASCAP’s chief operating officer, told The Wall Street Journal. ASCAP backed off only after it faced public outrage—which was fanned by restaurateurs wanting to play the radio without having to pay fees. After a confusingly written press release both denying that it had ever sought to ask any Girl Scout camps for money and apologizing for asking the Girl Scout camps for money, it now charges the Scouts $1 a year, forgoing real profits while making it clear that the girls sing the songs only by ASCAP’s belated good graces.)

We are in the midst of a cultural war over copyright, in which the salvos show the complete disconnect between the colliding copyright regimes of statute and practicality, law and life. A formal report by a commission chartered by the British Patent and Trademark Office suggests, without a trace of self-consciousness, that we encourage schoolchildren to include the copyright symbol on all their homework. The Business Software Alliance, a commercial software industry group, just unveiled a website for kids to inculcate the values of Title 17 over those of consumer praxis. There a kid can play Piracy Deepfreeze, becoming a crusading, well, ferret. “Stop the pirates from freezing the city! Throw your ball into the pirates and their stolen software before they hit the ground.”

These attempts to lawyerify our culture won’t work. We hew to laws against stealing because there is already cultural consensus that stealing is wrong, rooted in the fact that the thief deprives the good citizen of the stolen property. To copy an idea does no such thing; wrote Jefferson, “he who lights his taper at mine, receives light without darkening me.” However, it does indeed deprive the original author of the ability to monopolize the idea and perhaps extract money from it. That can serve as a reason to create and enforce such a monopoly, but it’s not nearly as grounded in our ethical senses as is robbing a bank or vandalizing a house.

A Rational Call to Rational Action

It’s time for us to wise up and redraw copyright’s boundaries so that the law and reasonable public expectations fall into better alignment with one another. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in an entirely different way than music, for example, and lengthy copyright terms should be available only to those who at least bother to check in with the Copyright Office every few years. (Joseph Liu suggests incrementally scaling down copyright protection as each particular covered work ages.) But we do ourselves a fundamental disservice by fixating on current income structures and not thinking about future possibilities premised on amazing technological advances, especially when the rights at issue concern the flows of ideas, something fundamental to free societies.

Scholars such as William Fisher of Harvard Law School have floated ideas as sensible as they are radical—not to mention offensive to almost every interest in the copyright debates, from publisher to middleman to anarchist. He suggests in an upcoming book that ISPs remit to publishers a fee loosely based on the amount of copyrighted digital content that they are roughly calculated to be carrying, at which point people can trade music to their hearts’ content. (Note: Although Fisher’s book, Promises to Keep, is not due out until next summer, you can read an excerpt from its publisher, Stanford University Press; find the link at

Such reworkings of copyright will have costs to someone—they wouldn’t be reworkings if they didn’t. In the absence of tough copyright controls, investors may decide not to underwrite a $200 million blockbuster film because copying of the final product may unduly reduce their expected profit. (As Eben Moglen once said, “Society has been vastly underproducing pyramids since the time of the pharaohs.” The economic and social system that made pyramid production sensible simply doesn’t exist anymore, and no one seems to miss it, even if we’re a few pyramids short of where we’d like to be.)

The cost of making no change at all must also be soberly assessed, all the more so because the Internet heralds such a staggering potential for the rapid transformation and evolution of ideas. This is not about the crass ripping-off of CD tracks but about a possible Jazz Age of creation enabled by technology.

I pay my taxes. I have no idea how to calculate them, but I do what TurboTax tells me to. I’ll pay a copyright tax too and willingly support artists whose work I appreciate, because it’s the right thing to do, and because it guarantees that more work will be made available to me. I’m not alone.

So, let’s imagine a world in which Teddy Ruxpin can say whatever he wants, where kids can play and create with computers that have not been hobbled by overly zealous digital lockdowns, where bars and restaurants can have big TVs and stop measuring their parking lot patios, and where amateur webcasters can create thousands of radio stations featuring songs we like, perhaps ones that sound familiar but that have entirely new elements to them. We’ll still buy concert tickets, books and even CDs, and their digital descendants.

They’ll be competing with a lot more, though—that which is created for fun, not just for profit.

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