Bars can’t have TVs bigger than 55 inches. Teddy bears can’t include tape decks. Girl Scouts who sing “Puff, the Magic Dragon” owe royalties. Copyright law needs to change.
Jonathan Zittrain
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 of us who study and write about the law of cyberspace agree that copyright law is a big mess. As far as I can tell, federal courts experts don’t reject 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 our uniform discontent about copyright?
I think an answer can be gleaned from 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.
Copyright is like that, too. 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 cost is measured by the more important if inchoate currency of thoughts and ideas.
We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other. The law—Title 17 of the federal code— proscribes such acts as the public performance of music without payment to the composer or the copying of books without permission of the author (or more likely the company to whom the author long ago assigned rights).
The limits on behavior enumerated in Title 17 have gone far beyond the wholesale copying of books, maps, and charts covered by the first copyright act of 1790. They extend to computer software, dances, boat hulls (delineated in a 1998 amendment as “the frame or body of a vessel including the deck of a vessel, exclusive of masts, sails, yards, and rigging”), and music—Congress covered performances in 1909 and copies of sound recordings in 1971. What the public can and can’t do is described at a 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, as 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, as 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, 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.
– js.
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