Today I ran across an interesting explanation from Jonathan Zittrain of why copyright profs are hostile to copyright: he compares copyright's intricacies to those of the tax code and explains that copyright profs have the same attitude to copyright that tax profs have to the tax code--they don't mind the fundamental idea in the abstract, but the reality is just too baroque (my language, not his).

But ironically the article concludes with Professor Zittrain's embrace of the idea of a copyright tax! Just tell him how much to pay, and he'll sign up. I don't even think he sees the contradiction inherent in this line of argument. Apparently mind-boggling complexity is fine with Professor Zittrain--just so long has he doesn't have to think about it. And he has to think about it when it's in the copyright code, but not when it's in the tax code, so let's put it in the tax code!

Everyone who thinks the endless lobbying for new expansions to and exemptions from copyright law (known to economists as rent-seeking) is bad now--wait until there's a pool of tax money at stake. And if the tax saves consumers the trouble of understanding what it is they are ponying up for, there would be fewer concerned citizens, librarians, and so on, to push back the other way in the legislative process.

It is true, though, that copyright law has become very complex (like the tax code--and property law, and a lot of other things). But as Italian legal scholar Bruno Leoni once noted, law professors' perspectives on this are systematically exaggerated. Law profs, like appellate court judges, are constantly working not with the "easy" cases, but with the difficult, unresolved ones at the cutting edge--even though those are only a tiny fraction of the conflicts the law successfully resolves, those that never go anywhere near a court. This fascination with the boundaries of the law can easily make the entire body of the law seem like one big boundary dispute. One easily can overlook the merits of core principles, in copyright or any other area.

Simplicity is certainly a merit of any legal system. But it seems to be a natural feature of legal systems to add complexity as they mature--legal principles ultimately tend to be almost as complex as the realities of the disputes the rules resolve. The trick is to avoid complexity that is not necessary to reflect a complicated reality.

posted by Solveig Singleton @ 9:27 AM | Tax-Funded IP

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