: Code 2.0

Private Substitutes for Public Law

Private Substitutes for Public Law

So copyright law strikes a balance between control and access. What about that balance when code is the law? Should we expect that any of the limits will remain? Should we expect code to mirror the limits that the law imposes? Fair use? Limited term? Would private code build these bugs into its protections?

The point should be obvious: When intellectual property is protected by code, nothing requires that the same balance be struck. Nothing requires the owner to grant the right of fair use. She might allow individuals to browse for free, as a bookstore does, but she might not. Whether she grants this right depends on whether it profits her. Fair use becomes contingent upon private gain. More importantly, it becomes contingent upon the private gain of authors individually rather than authors as a class.

Thus, as privatized law, trusted systems regulate in the same domain that copyright law regulates. But unlike copyright law, they do not guarantee the same limits on copyrights protection. Trusted systems give the producer maximum control over the uses of copyrighted work admittedly at a cheaper cost, thus perhaps permitting many more authors to publish. But they give authors almost perfect control in an area in which the law did not. Code thus displaces the balance that copyright law strikes by displacing the limits the law imposes. As Daniel Benloliel puts it,

Decentralized content providers are . . . privatizing the enforcement authority with strict technological standards, under which individuals would be banned from access and use of particular digital content in a way that might override legitimate fair use[37].

So far my description simply sets law against code: the law of copyright either complemented by, or in conflict with, private code. You may not yet be convinced that we should consider this a conflict, because it has always been the case that one can exercise more control over a copyrighted work tha nthe law gives you the right to exercise over the copyright. For example, if you own a painting that is in the public domain, theres no requirement for you to let anyone see it. You could lock it in your bedroom and never let anyone see it ever. In a sense, youve thus deprived the world of the value of this painting being in the public domain. But no one has ever thought that this interaction between the law of trespass and copyright has created any important conflict. So why should anyone be troubled if copyright owners use code to lock up their content beyond the balance the law of copyright strikes?

If this is where youre stuck, then let me add one more part to the story. As I mentioned above, the DMCA contains an anti-circumvention provision. That part of the law forbids the circumvention of some technical protection measures; it forbids the development of tools to circumvent technical protection as well. Most important, it forbids these circumventions regardless of the purpose of the circumvention. Thus, if the underlying use you would make of a copyrighted work if you could get access to it is a fair use, the DMCA still makes it an offense to circumvent technical protections to get access to it. Thus one part of the law of copyright grants fair use, while another part of copyright removes at least some fair use liberty where the fair use has been removed by technical means[38].

But so what, the skeptic will ask. What the law gives, the law can take away, cant it?

No it cant, and thats the point. As the Supreme Court has indicated, copyright law is consistent with the First Amendment only because of certain important limitations built into the law. Removing those limitations would then raise important First Amendment questions. Thus, when the law acts with code to remove the laws protection for fair use, this should raise an important question at least for those concerned about maintaining the balance that copyright law strikes.

But maybe this conflict is just temporary. Couldnt the code be changed to protect fair use?

The answer to that hopeful (and again, hopeful because my main point is about whether incentives to protect fair use exist) question is no, not directly. Fair use inherently requires a judgment about purpose, or intent. That judgment is beyond the ken of even the best computers. Indirectly, however, fair use could be protected. A system that allowed an individual to unlock the trusted system if he claimed the use was fair (perhaps marking the used work with a tag to make it possible to trace the use back to the user) could protect fair use. Or as Stefik describes, a system that granted users a fair use license, allowing them to unlock the content and use insurance backing the license to pay for any misuse, might also protect fair use[39]. But these alternatives again rely on structures beyond code. With the code itself, there is no way adequately to police fair use.

Some will respond that I am late to the party: Copyright law is already being displaced, if not by code then by the private law of contract. Through the use of click-wrap, or shrink-wrap, licenses, authors are increasingly demanding that purchasers, or licensees, waive rights that copyright law gave them. If copyright law gives the right to reverse-engineer, then these contracts might extract a promise not to reverse-engineer. If copyright law gives the right to dispose of the book however the purchaser wants after the first sale, then a contract might require that the user waive that right. And if these terms in the contract attached to every copyright work are enforceable merely by being attached and knowable, then already we have the ability through contract law to rewrite the balance that copyright law creates.

I agree that this race to privatize copyright law through contract is already far along, fueled in particular by decisions such as Judge Frank Easterbrooks in ProCD v. Zeidenberg. But contracts are not as bad as code. Contracts are a form of law. If a term of a contract is inconsistent with a value of copyright law, you can refuse to obey it and let the other side get a court to enforce it. In some cases, courts have expressly refused to follow a contract term precisely because it is inconsistent with a copyright law value[40]. The ultimate power of a contract depends upon the decision by a court to enforce the contract or not. Although courts today are relatively eager to find ways to enforce these contracts, there is at least hope that if the other side makes its case very clear, courts could shift direction again[41]. As Stefik writes, trusted systems differ from an ordinary contract in critical ways.

In an ordinary contract, compliance is not automatic; it is the responsibility of the agreeing parties. There may be provisions for monitoring and checking on compliance, but the actual responsibility for acting in accordance with the terms falls on the parties. In addition, enforcement of the contract is ultimately the province of the courts[42].

The same is not true of code. Whatever problems there are when contracts replace copyright law, the problems are worse when code displaces copyright law. Again where do we challenge the code? When the software protects without relying in the end on the state, where can we challenge the nature of the protection? Where can we demand balance when the code takes it away?

I dont mean to enter the extremely contentious debate about whether this change in control is good or appropriate. Ive said too much about that elsewhere[43]. For our purposes here, the point is simply to recognize a significant change. Code now makes possible increasingly perfect control over how culture is spread. Regulations have been fairly consistent . . . on the side of expanding the power of the owners to control the use of their products.[44] And these regulations invite a demand for perfect control over how culture is spread.

The rise of contracts qualifying copyright law and the rise of code qualifying copyright law raise a question that the law of copyright has not had to answer before. We have never had to choose whether authors should be permitted perfectly to control the use of their intellectual property independent of the law, for such control was not possible. The balance struck by the law was the best that authors could get. But now, code gives authors a better deal. The question for legal policy is whether this better deal makes public sense.

Here we confront the first latent ambiguity within the law of copyright. There are those who would say that copyright law already decides this question whether against code-based control, or for it. But in my view, this is a choice the law has yet to make. I have my own views about how the law should decide the question. But what technology has done is force us to see a choice that was not made before. See the choice, and then make it.

Put most directly: There hasalways been a set of uses of copyrighted work that was unregulated by the law of copyright. Even within the boundary of uses that were regulated by the law of copyright, fair use kept some uses free. The core question is why? Were these transactions left free because it was too costly to meter them? Or were these transactions left free because keeping them free was an important public value tied to copyright?

This is a question the law never had to resolve, though there is support for both views[45]. Now the technology forces us to resolve it. The question, then, is how.

A nice parallel to this problem exists in one part of constitutional law. The framers gave Congress the power to regulate interstate commerce and commerce that affects interstate commerce[46]. At the founding, that was a lot of commerce, but because of the inefficiencies of the market, not all of it. Thus, the states had a domain of commerce that they alone could regulate[47].

Over time, however, the scope of interstate commerce has changed so that much less commerce is now within the exclusive domain of the states. This change has produced two sorts of responses. One is to find other ways to give states domains of exclusive regulatory authority. The justification for this response is the claim that these changes in interstate commerce are destroying the framers vision about state power.

The other response is to concede the increasing scope of federal authority, but to deny that it is inconsistent with the framing balance[48]. Certainly, at the founding, some commerce was not interstate and did not affect interstate commerce. But that does not mean that the framers intended that there must always be such a space. They tied the scope of federal power to a moving target; if the target moves completely to the side of federal power, then that is what we should embrace[49].

In both contexts, the change is the same. We start in a place where balance is given to us by the mix of frictions within a particular regulatory domain: Fair use is a balance given to us because it is too expensive to meter all use; state power over commerce is given to us because not all commerce affects interstate commerce. When new technology disturbs the balance, we must decide whether the original intent was that there be a balance, or that the scope of one side of each balance should faithfully track the index to which it was originally tied. Both contexts, in short, present ambiguity.

Many observers (myself included) have strong feelings one way or the other. We believe this latent ambiguity is not an ambiguity at all. In the context of federal power, we believe either that the states were meant to keep a domain of exclusive authority[50] or that the federal government was to have whatever power affected interstate commerce[51]. In the context of fair use, we believe that either fair use is to be a minimum of public use, guaranteed regardless of the technology[52], or that it is just an efficient compromise in response to an inefficient technology, to be removed as soon as efficiency can be achieved.

But in both cases, this may make the problem too easy. The best answer in both contexts may be that the question was unresolved at the framing: Perhaps no one thought of the matter, and hence there is no answer to the question of what they would have intended if some central presupposition had changed. And if there was no original answer, we must decide the question by our own lights. As Stefik says of trusted systems and, we might expect, of the implications of trusted systems It is a tool never imagined by the creators of copyright law, or by those who believe laws governing intellectual property cannot be enforced.[53]

The loss of fair use is a consequence of the perfection of trusted systems. Whether you consider it a problem or not depends on your view of the value of fair use. If you consider it a public value that should exist regardless of the technological regime, then the emergence of this perfection should trouble you. From your perspective, there was a value latent in the imperfection of the old system that has now been erased.

But even if you do not think that the loss of fair use is a problem, trusted systems threaten other values latent in the imperfection of the real world. Consider a second.

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