The Copyright Cage
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.
By Jonathan Zittrain for Legal Affairs.
Jonathan Zittrain is the Jack N. and Lillian R. Berkman Assistant Professor for Entrepreneurial Legal Studies at Harvard Law School and a director of its Berkman Center for Internet & Society.

YES, I HATE THE EFFECTS OF COPYRIGHT ON A DIGITAL REVOLUTION that heralds so much more than the banal ripping off of CD tracks. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled 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 known as “monopolies”) called for built-in limits to a creator’s exclusive rights. A copyright term, for example, would expire even if a work still held commercial value…
It’s time for us to wise up and to redraw copyright’s boundaries so that the law and reasonable public expectations fall into better alignment with one another…
Scholars like 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.
Overhauling copyright will have costs to some. 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. But the cost of making no change at all must also be soberly assessed because the Internet offers such a staggering potential for the rapid transformation and evolution of ideas-a veritable 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.

http://www.legalaffairs.org/issues/July-August-2003/feature_zittrain_julaug03.html
Legal Affairs: May | June 2003
The Copyright Cage
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.
By 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.
This astonishingly intricate copyright regime isn’t created only by statutes, of course. The notion of “contributory” copyright infringement-aiding and abetting copycats-was devised by judges. In conjunction with a statutory limit on creating “derivative” works of a copyrighted original, a theory of contributory infringement led a couple of 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 “Play” when a non-Teddy Ruxpin story tape was inside the creature, children would be creating a derivative, contraband “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 makers to stop abetting the kids’ illegal behavior.
Still, 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 Allen’s quotation here is probably fair use-but I’d have to risk a lawsuit to be sure. (He might have a similar worry, since he didn’t come up with the joke in the first place.) No wonder most publishers proceed as if fair use doesn’t exist, asking permission to use every quote or, failing that, doing without.
Title 17’s copious detail used to trouble only professional (re)publishers and their lawyers. The title’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 range of Teddy Ruxpin stories-they don’t directly constrain individual behavior, which has been de facto governed by the second regime of reasonable practice.
The public has instinctively controlled 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-which lost hundreds of thousands of dollars in a 1991 lawsuit brought by publishers over a dozen course packs that included copies of book chapters-won’t copy a whole book on someone else’s behalf.) Still others might actually think it wrong to make wholesale copies. They might choose to copy only a few pages or to buy the complete 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, counterexceptions, 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.
When points of friction have threatened, the publishers have taken quick action, ferociously fighting against any perceived encroachment on copyright’s rights and its associated cash flows. Recall the reaction of the Motion Picture Association of America to the prospect of a VCR. “The VCR is to the American film producer . . . as the Boston Strangler was to the woman alone,” warned Jack Valenti, the 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 despite the staggering revenues gleaned from video rentals ever since.
When digital audio tape 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 1992, which required producers of DATs to incorporate the “Serial Copy Management System” 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.” But 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 won provisions for a tax on the producers of digital recorders and blank digital tapes. The tax revenues do not go to the government; they are 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.” As a result of the law, DAT players were stillborn, so there were few spoils to split-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 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,” which meant that DVDs from one continent 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.
THEN CAME FILE SWAPPING ON THE NET and the all-purpose computers attached to it. With the right software, individuals could copy digital content perfectly, quickly, and cheaply-and the presence of a