Why is copyright law so weird?

Posted by Mathias Klang on August 29, 2014

When we came across an old Remington Typewriter in a small curiosity shop in Manchester Vermont (founded 1761), the 12-year old looked at it with great curiosity and asked how it worked. He knew it was a writer’s tool but he was unable to figure out how text was produced.

So I explained how to load it with paper, pointed to the ribbon and explained that simply touching the keys would do very little – this was a classic machine where every key needed to be thumped hard to produce an imprint on the paper. The shopkeeper and the other customers (being older) all smiled at the idea that something so simple needed to be explained.

Naturally, everything imaginable has already been done on the Internet, so if you want to get an idea of what this conversation was like, check out the Typewriter episode of the adorable “Kids React to Technology” series:

One of my favorite quotes is that the machine “…types and prints at the same time”. Many of the kids seem to enjoy the tactile nature of typing but they all agree it’s too complicated.

Reminiscing about the typewriter is not only nostalgia. Understanding the technology of the past is vital to understanding the regulations and culture of the present. Take for example something simple like

Ctrl X – Ctrl V

Which, as most people know, are the keyboard shortcuts on a computer for cut and paste. But how many know the reason for cut and paste is that in the analogue world moving section a section of text could literally involve a pair of scissors and some glue. You cut it out and pasted it into the right place.

This is easy enough but it gets even more complex when we talk about law (or culture, but I am limiting this to law). For the longest time, copyright law did not really need to address private copying because the process of copying involved hours of labor and low-quality final output. Physical reality acted as a barrier to the action and therefore legislation was unnecessary. We have no regulation prohibiting people from passing through walls – the very nature of walls makes it unnecessary.

The problem arises when we live through a period of rapid technological change. The law is, and always will be, a slow mover. Most legislators grew up in worlds where typewriters did not need to be explained. Their understanding of the physical realities of copying were created in an analogue reality.

As Douglas Adams writes in Salmon of Doubt:

 “I’ve come up with a set of rules that describe our reactions to technologies:
1. Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works.
2. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it.
3. Anything invented after you’re thirty-five is against the natural order of things.”

So what does this mean? Picture a legislator: they are often (unfortunately) older, wealthy men. For our example, picture Lex, a 60-year old legislator. Lex was born in 1954, he was fifteen in 1969, and hit 35 in 1989.

Technology invented prior to 1969 is perfectly natural: Obviously the typewriter, the radio and television were all natural. Email had been invented but most people were more likely to get a telegram than understand what an email was. The hottest new device – in this area – was the fax machine. Mobile telephones were invented but it was highly unlikely that anyone would ever hold one.

The development of technology between 1969 and 1989 was astounding – this era began with the first manned mission to land on the Moon: one small step and all that. But still Lex would be slowing down in his appreciation of technology; he would be able to use the VCR and he may even have considered buying the bulky Macintosh portable introduced in 1989…but the Internet, smartphones, mobile devices and most things we now take for granted in communications were not even in his imagination. Few people in 1989 thought landlines would be disappearing.

Just because Lex is old doesn’t mean he cannot be innovative. However, the lens through which he interprets the world is formed by a set of technological tools that have, for the most part, been replaced completely or been upgraded beyond recognition.

When Lex talks about copyright, he uses the vocabulary of this era but often his mindset is interpreting the words through the lens of his established technological world. To make matters worse, he is probably interpreting a set of laws that were created in the 1970s by men whose technology visions were set in the thirties. Naturally all these laws have been updated and modernized – but their fundamental nature remains anachronistic.

So the next time you are puzzled by copyright law remember that it wasn’t built for your iPad…it was built by people who never even dreamed of iPads.