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July|August 2003
To Kill an Avatar By Dan Hunter and F. Gregory Lastowka
May The Best Wookiee Win
The Copyright Cage By Jonathan Zittrain
Your Cellphone is a Homing Device By Brendan I. Koerner
Camera Shy By Patrick Keefe
Seeing it Both Ways By Orin S. Kerr
The Science of the Small By Glenn Harlan Reynolds

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 symbol did little to deter them from doing so.

In theory, of course, Title 17 applies to everyone. Even the Sony case of 1984 included a token individual defendant, a VCR owner who was the alleged direct infringer. But no one demanded that he pay damages or change his behavior. More recently the Recording Industry Association of America has sought the identities of individuals who use Internet file-trading services and has brought (and settled) suits against college students alleged to be organizing file-swapping circles within their university intranets.

The recording industry is not going to sue the tens of thousands of Americans who engage in these practices. But it hopes to make an example of a few users to add teeth to the infringement warnings that file-swapping services send to their customers—and to pressure those services to pressure their customers to stop copying files.

The RIAA 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. (And Universal Music Group and a unit of the EMI group are now suing a venture capital firm for daring to finance Napster, under what seems to be a novel Russian-doll theory of contributory contributory copyright infringement.) The fact is that the Internet was built to copy things. Microsoft Windows's "Network Neighborhood" feature, for example, is simply a way to swap files. 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 illegal is simply too sweeping a move for a court to make.

Publishers have successfully lobbied for 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, 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 group with a decent amount of political power—whose members include Verizon, Comcast, AOL, MCI, and, of course, Microsoft—ISPs obtained a federal exemption in 1996 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.

ISPs have no such blanket exemption from liability for hosting or carrying unauthorized copyrighted material. No statute clearly sets out what is legally required of ISPs—and courts have interpreted the obligations of ISPs in different and conflicting ways. CEOs or university administrators providing Internet access to their employees or students don't know what their legal responsibilities are. When they receive letters insisting that they stop allegedly illegal activity on their networks, they gravitate towards a statutory "safe harbor" and take down challenged material—or deny network access to anyone accused of bad copyright behavior.

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? Because it's the status quo, some people see the current allocation of rights and duties under copyright as fair, and the happenstance of technical innovation that might displace it as unfair. A meatier 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 alongside) Title 17. The Net forces us to confront the contradictions between what the law 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. Under the 1909 copyright law and its progeny, a song's composers collect royalties for a "public performance" like the radio broadcast of a CD. 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), no money is owed to the composer of the song for the creation of the copy.

So, a question perfect 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 is made of the song in the computer's memory (the 1971 law)? Should it be the composers or the record companies?

In 1998, Congress answered "Yes." A webcaster owes both. How much is owed to the record companies? Whatever they want to charge, if they want 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, and (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, as long as the panel is not overruled (as really happened) 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 prepare 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 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.

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 set on the public. It is, for example, technically against the law for Girl Scouts to sing "This Land Is Your Land" and "Puff, the Magic Dragon" around a campfire without paying royalties. The American Society of Composers, Authors and Publishers tried to collect such royalties. It backed off only after it faced public outrage—which was fanned by restaurateurs wanting to play the radio without having to pay fees. It now charges the Scouts $1 a year, foregoing real profits while making it clear that the girls sing only by ASCAP's belatedly good graces.

Attempts to reconcile the colliding regimes of statute and practicality, law and life, have been hamfisted at best. 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 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 . . . ferret. "Stop the pirates from freezing the city! Throw your ball into the pirates and their stolen software before they hit the ground."

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. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in a different way than music, for example, and lengthy copyright terms should be available only to those who bother to check in with the Copyright Office every few years. But we do ourselves a 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 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. So: Let's imagine a world in which Teddy Ruxpin can say whatever he wants, where kids can play with computers that are not digitally locked down, where bars and restaurants can stop measuring their TVs and their parking lots, and where amateur webcasters can create thousands of radio stations featuring songs we like, perhaps ones that sound familiar but that have new elements to them. We'll still buy concert tickets, books, and CDs and their digital descendants. They'll be competing with a lot more, though—created for fun, even if it happens to turn a profit.

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.

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