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Chapter 10. Intellectual Property

Chapter 10. Intellectual Property

Harold Reeves is among the best research assistants I have had. (But alas, the law has now lost him hes become a priest!). Early into his second year at the University of Chicago Law School, he came to me with an idea he had for a student comment an article that would be published in the law review[1]. The topic was trespass law in cyberspace whether and how the law should protect owners of space in cyberspace from the kinds of intrusions that trespass law protects against in real space. His initial idea was simple: There should be no trespass law in cyberspace[2]. The law should grant owners of space in cyberspace no legal protection against invasion; they should be forced to fend for themselves.

Reevess idea was a bit nutty, and in the end, I think, wrong[3]. But it contained an insight that was quite brilliant, and that should be central to thinking about law in cyberspace.

The idea much more briefly and much less elegantly than Reeves has put it is this: The question that law should ask is, What means would bring about the most efficient set of protections for property interests in cyberspace? Two sorts of protections are possible. One is the traditional protection of law the law defines a space where others should not enter and punishes people who enter nonetheless. The other protection is a fence, a technological device (a bit of code) that (among other things) blocks the unwanted from entering. In real space, of course, we have both law, in the form of trespass law, and fences that supplement that law. Both cost money, and the return from each is not necessarily the same. From a social perspective, we would want the mix that provides optimal protection at the lowest cost. (In economics-speak, we would want a mix such that the marginal cost of an additional unit of protection is equivalent to the marginal benefit.)

The implication of this idea in real space is that it sometimes makes sense to shift the burden of protection to citizens rather than to the state. If, for example, a farmer wants to store some valuable seed on a remote part of his farm, it is better for him to bear the cost of fencing in the seed than to require the police to patrol the area more consistently or to increase the punishment for those they catch. The question is always one of balance between the costs and benefits of private protection and state protection.

Reevess insight about cyberspace follows the same line. The optimal protection for spaces in cyberspace is a mix between public law and private fences. The question to ask in determining the mix is which protection, on the margin, costs less. Reeves argues that the costs of law in this context are extremely high in part because of the costs of enforcement, but also because it is hard for the law to distinguish between legitimate and illegitimate uses of cyberspaces. There are many agents that might use the space of cyberspace. Web spiders, which gather data for web search engines; browsers, who are searching across the Net for stuff to see; hackers (of the good sort) who are testing the locks of spaces to see that they are locked; and hackers (of the bad sort) who are breaking and entering to steal. It is hard, ex ante, for the law to know which agent is using the space legitimately and which is not. Legitimacy depends on the intention of the person granting access.

So that led Reeves to his idea: Since the intent of the owner is so crucial here, and since the fences of cyberspace can be made to reflect that intent cheaply, it is best to put all the incentive on the owner to define access as he wishes. The right to browse should be the norm, and the burden to lock doors should be placed on the owner[4].

Now put Reevess argument aside, and think for a second about something that will seem completely different but is very much the same idea. Think about theft and the protections that we have against it.

I have a stack of firewood behind my house. No one steals it. If I left my bike out overnight, it would be gone.

A friend told me that, in a favorite beach town, the city used to find it impossible to plant flowers they would immediately be picked. But now, he proudly reports, after a long community spirit campaign, the flowers are no longer picked.

There are special laws about the theft of automobiles, planes, and boats. There are no special laws about the theft of skyscrapers. Cars, planes, and boats need protection. Skyscrapers pretty much take care of themselves.

Many things protect property against theft differently. The market protects my firewood (it is cheaper to buy your own than it is to haul mine away); the market is a special threat to my bike (which if taken is easily sold). Norms sometimes protect flowers in a park; sometimes they do not. Nature sometimes conspires with thieves (cars, planes, and boats) and sometimes against them (skyscrapers).

These protections are not fixed. I could lock my bike and thereby use real-space code to make it harder to steal. There could be a shortage of firewood; demand would increase, making it harder to protect. Public campaigns about civic beauty might stop flower theft; selecting a distinctive flower might do the same. Sophisticated locks might make stolen cars useless; sophisticated bank fraud might make skyscrapers vulnerable. The point is not that protections are given, or unchangeable, but that they are multiplied and their modalities different.

Property is protected by the sum of the different protections that law, norms, the market, and real-space code yield. This is the implication of the argument made in Chapter 7. From the point of view of the state, we need law only when the other three modalities leave property vulnerable. From the point of view of the citizen, real-space code (such as locks) is needed when laws and norms alone do not protect enough. Understanding how property is protected means understanding how these different protections work together.

Reevess idea and these reflections on firewood and skyscrapers point to the different ways that law might protect property and suggest the range of kinds of property that law might try to protect. They also invite a question that has been asked by Justice Stephen Breyer and many others: Should law protect some kinds of property in particular, intellectual property at all[5]?

Among the kinds of property law might protect, my focus in this chapter will be on the property protected by copyright[6]. Of all the different types of property, this type is said to be the most vulnerable to the changes that cyberspace will bring. Many believe that intellectual property cannot be protected in cyberspace. And in the terms that Ive sketched, we can begin to see why one might think this, but we will soon see that this thought must be wrong.

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