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Monday, February 13, 2012

What's the Worst Provision in the Copyright Act?

I spend a lot of time regarding the Copyright Act with a kind of horrified fascination. Although parts are elegantly drafted, most of it is, quite frankly, a mess. So here's a quick survey: what's your least favorite provision in U.S. copyright law? Ideally, it should be one or more of the following:

  • Incomprehensibly drafted
  • Unpredictably applied by the courts
  • Economically inefficient
  • Full of traps for the unwary
  • Unfair to the well-intentioned
  • Ineffective at its stated purpose
  • Demeaning to personal autonomy
  • Disruptive to other areas of law
  • (Bonus) Racist, sexist, or homophobic

I'll report on the results of the survey tomorrow, along with my own candidate.

Posted by James Grimmelmann on February 13, 2012 at 02:47 PM in Intellectual Property | Permalink


My favorite is actually two subsections together: § 201(b), together with the definition of eligibility in § 101. By my count, it meets all of the criteria except the bonus... and has the additional bonus of being inconsistent with the copyright scheme of every other nation in the Berne Convention. And with the Statute of Anne, for that matter.

Posted by: C.E. Petit | Feb 14, 2012 11:34:08 AM

Fair Use - going away. Hits every one of the criteria (including arguable racist application by the courts, when considering fair use and hip hop).

I would also champion 108(b), but that has never really been applied by the courts (though it is one of the worst statutes ever drafted).

Posted by: Mike | Feb 14, 2012 11:31:30 AM

That's an easy one: the statutory damages bit.

Posted by: Paul Gowder | Feb 14, 2012 1:04:50 AM

I bet Copyright Royalty Judges get cool outfits.

Posted by: Brad | Feb 13, 2012 10:33:45 PM

I like to think of 119 as a portion of the Communications Act that was codified in Title 17 by mistake. Non-copyright folks -- check it out, and you'll understand why I started giggling when I saw Aaron's comment.

Posted by: James Grimmelmann | Feb 13, 2012 3:20:42 PM

My own personal candidate for least-favorite provision is 114(d), although I think it fits less than half the factors on your list. (E.g. unpredictably applied -- I don't think it's applied much at all by courts.) I don't like it because it's impenetrable, yet applicable to any small business or organization that would like to set up music streaming on their website. It should be a regulation rather than a statute. But from your factors, I would guess that you are going to nominate the termination provisions.

Posted by: Bruce Boyden | Feb 13, 2012 3:19:20 PM

This doesn't hit all of your criteria, but I often assign students § 119 in the context of exceptions and limitations. It sounds cruel, but as intended, they usually give up a subsection or two into that tangled mess. But by then my point about the increasingly technical and industry-driven nature of amendments to the act has hit home.

Posted by: Aaron Perzanowski | Feb 13, 2012 3:11:48 PM

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