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.
Reeves’s 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 I’ve sketched, we can begin to see why one might think this, but we will soon see that this thought must be wrong.
On the Reports of Copyright’s Demise
Roughly put, copyright gives a copyright holder certain exclusive rights over the work, including, most famously, the exclusive right to copy the work. I have a copyright in this book. That means, among other rights, and subject to some important exceptions, you cannot copy this book without my permission. The right is protected to the extent that laws (and norms) support it, and it is threatened to the extent that technology makes it easy to copy. Strengthen the law while holding technology constant, and the right is stronger. Proliferate copying technology while holding the law constant, and the right is weaker.
In this sense, copyright has always been at war with technology. Before the printing press, there was not much need to protect an author’s interest in his creative work. Copying was so expensive that nature itself protected that interest. But as the cost of copying decreased, and the spread of technologies for copying increased, the threat to the author’s control increased. As each generation has delivered a technology better than the last, the ability of the copyright holder to protect her intellectual property has been weakened.
Until recently, the law’s response to these changes has been measured and gradual. When technologies to record and reproduce sound emerged at the turn of the last century, composers were threatened by them. The law responded by giving composers a new, but limited, right to profit from recordings. When radio began broadcasting music, the composers were held to be entitled to compensation for the public performance of their work, but performers were not compensated for the “performance” of their recordings. Congress decided not to remedy that problem. When cable television started rebroadcasting television broadcasts, the copyright holders in the original broadcasts complained their work was being exploited without compensation. Congress responded by granting the copyright holders a new, but limited, right to profit from the rebroadcasts. When the VCR made it simple to record copyrighted content from off the air, copyright holders cried “piracy.” Congress decided not to respond to that complaint. Sometimes the change in technology inspired Congress to create new rights, and sometimes not. But throughout this history, new technologies have been embraced as they have enabled the spread of culture.
During the same period, norms about copyrighted content also evolved. But the single, defining feature of these norms can perhaps be summarized like this: that a consumer could do with the copyrighted content that he legally owned anything he wanted to do, without ever triggering the law of copyright. This norm was true almost by definition until 1909, since before then, the law didn’t regulate “copies.” Any use the consumer made of copyrighted content was therefore highly unlikely to trigger any of the exclusive rights of copyright. After 1909, though the law technically regulated “copies”, the technologies to make copies were broadly available. There was a struggle about Xerox machines, which forced a bit of reform[7], but the first real conflict that copyright law had with consumers happened when cassette tapes made it easy to copy recorded music. Some of that copying was for the purpose of making a “mixed tape”, and some was simply for the purpose of avoiding the need to buy the original recording. After many years of debate, Congress decided not to legislate a ban on home taping. Instead, in the Audio Home Recording Act, Congress signaled fairly clear exemptions from copyright for such consumer activity. These changes reinforced the norm among consumers that they were legally free to do whatever they wanted with copyrighted work. Given the technologies most consumers had access to, the stuff they wanted to do either did not trigger copyright (e.g., resell their books to a used bookstore), or if it did, the law was modified to protect it (e.g., cassette tapes).
Against the background of these gradual changes in the law, along with the practical norm that, in the main, the law didn’t reach consumers, the changes of digital technology were a considerable shock. First, from the perspective of technology, digital technologies, unlike their analog sister, enabled perfect copies of an original work. The return from copying was therefore greater. Second, also from the perspective of technology, the digital technology of the Internet enabled content to be freely (and effectively anonymously) distributed across the Internet. The availability of copies was therefore greater. Third, from the perspective of norms, consumers who had internalized the norm that they could do with “their content” whatever they wanted used these new digital tools to make “their content” available widely on the Internet. Companies such as Napster helped fuel this behavior, but the practice existed both before and after Napster. And fourth, from the perspective of law, because the base technology of the Internet didn’t reveal anything about the nature of the content being shared on the Internet, or about who was doing the sharing, there was little the law could do to stop this massive “sharing” of content. Thus fifth, and from the perspective of copyright holders, digital technologies and the Internet were the perfect storm for their business modeclass="underline" If they made money by controlling the distribution of “copies” of copyrighted content, you could well understand why they viewed the Internet as a grave threat.
Very quickly, and quite early on, the content industry responded to this threat. Their first line of defense was a more aggressive regime of regulation. Because, the predictions of cyberspace mavens notwithstanding, not everyone was willing to concede that copyright law was dead. Intellectual property lawyers and interest groups pushed early on to have law shore up the protections of intellectual property that cyberspace seemed certain to erase.
Law to the Rescue
The initial response to this push was a White Paper produced by the Commerce Department in 1995. The paper outlined a series of modifications aimed, it said, at restoring “balance” in intellectual property law. Entitled “Intellectual Property and the National Information Infrastructure”, the report sought to restate existing intellectual property law in terms that anyone could understand, as well as to recommend changes in the law in response to the changes the Net would bring. But as scholars quickly pointed out, the first part was a bust[8]. The report no more “restated” existing law than Soviet historians “retold” stories of Stalin’s administration. The restatement had a tilt, very definitely in the direction of increased intellectual property protection, but it pretended that its tilt was the natural lay of the land.
5.
See, for example, Stephen Breyer, "The Uneasy Case for Copyright: A Study of Copy right in Books, Photocopies, and Computer Programs,"
6.
There is a ferocious debate about whether these separate forms of regulation — copy right, patent, and trademark — should be referred to together as "Intellectual Property." I myself have gone both ways on this question, but currently believe it is harmful not to refer to these distinct bodies of law as "intellectual property." Though of course these domains are different, calling them by the same name doesn't necessarily confuse (no one is confused about the difference between a tiger and a kitty cat, even if they're both called "cats"). More importantly, by not calling them by the same name, we lose a chance to point out inconsistencies in the way these different forms of property are treated. For example, both patent and trademark benefit from significant formalities built into each system; when you notice those formalities are absent from "copyright," one is led to wonder why one form of "intellectual property" is free of formalities, while the other two are not.
7.
Paul Goldstein,
8.
"Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights," U.S. Department of Commerce, 1995; hereafter "White Paper." George Smirnoff III ("Copyright on the Internet: A Critique of the White Paper's Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, Online Service Provider Liability,"