What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?
Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.
The Simplest, Most Complicated Law You Know
Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms. What’s a copyright? The exclusive right to control and exploit creative works. How do you infringe a copyright? Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work. Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint: copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”
Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal. (Headline: “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)
To be fair, though, things started getting wacky long before the Internet was invented. For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee). Why? Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters. Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief. (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have adifferent quirk of copyright law — the proliferation of blanket “public performance” licenses managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)