For our purposes, however, it is the recommendations that were most significant. The government proposed four responses to the threat presented by cyberspace. In the terms of Chapter 7, these responses should be familiar.
The first response was traditional. The government proposed changes in the law of copyright to “clarify” the rights that it was to protect[9]. These changes were intended to better define the rights granted under intellectual property law and to further support these rights with clarified (and possibly greater) legal penalties for their violation.
The second response addressed norms, specifically copying norms. The report recommended increased educational efforts, both in schools and among the general public, about the nature of intellectual property and the importance of protecting it. In the terms of Chapter 7, this is the use of law to change norms so that norms will better support the protection of intellectual property. It is an indirect regulation of behavior by direct regulation of norms.
The third and fourth responses mixed technology and the market. The report called for legal support — through financial subsidies and special legal protection — of “copyright management schemes.” These “schemes” were simply technologies that would make it easier to control access to and use of copyrighted material. We will explore these “schemes” at some length later in this chapter, but I mention them now as another example of indirect regulation — using the market to subsidize the development of a certain software tool, and using law to regulate the properties of other software tools. Copyright management systems would be supported by government funding and by the threat of criminal sanctions for anyone deploying software to crack them[10].
Congress followed the recommendations of the 1995 White Paper in some respects. The most important was the enactment of the Digital Millennium Copyright Act in 1998. That statute implemented directly the recommendation that “technological protection measures” be protected by law. Code that someone implements to control either access to or use of a copyrighted work got special legal protection under the DMCA: Circumvention of that code, subject to a few important exceptions, constituted a violation of the law.
We will return to the DMCA later. The point just now, however, is to recognize something important about the presumption underlying the White Paper. The 1995 package of proposals was a scattershot of techniques — some changes in law, some support for changing norms, and lots of support for changing the code of cyberspace to make it better able to protect intellectual property. Perhaps nothing better than this could have been expected in 1995 — the law promised a balance of responses to deal with the shifting balance brought on by cyberspace.
Balance is attractive, and moderation seems right. But something is missing from this approach. The White Paper proceeds as if the problem of protecting intellectual property in cyberspace was just like the problem of protecting intellectual property in real space. It proceeds as if the four constraints would operate in the same proportions as in real space, as if nothing fundamental had changed.
But something fundamental has changed: the role that code plays in the protection of intellectual property. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law.
The White Paper did not see this. Built into its scattershot of ideas is one that is crucial to its approach but fundamentally incorrect — the idea that the nature of cyberspace is anarchy. The White Paper promises to strengthen law in every area it can. But it approaches the question like a ship battening down for a storm: Whatever happens, the threat to copyright is real, damage will be done, and the best we can do is ride it out.
This is fundamentally wrong. We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. The power to regulate access to and use of copyrighted material is about to be perfected. Whatever the mavens of the mid-1990s may have thought, cyberspace is about to give holders of copyrighted property the biggest gift of protection they have ever known.
In such an age, the real question for law is not, how can law aid in that protection? but rather, is the protection too great? The mavens were right when they predicted that cyberspace will teach us that everything we thought about copyright was wrong[11]. But the lesson in the future will be that copyright is protected far too well. The problem will center not on copy-right but on copy-duty — the duty of owners of protected property to make that property accessible.
That’s a big claim. To see it, however, and to see the consequences it entails, we need consider three examples. The first is a vision of a researcher from Xerox PARC (appropriately enough), Mark Stefik, and his idea of “trusted systems.[12]” The second is an implication of a world dominated by trusted systems. The third is an unreckoned cost to the path we are now on to “protect intellectual property.” The examples will throw into relief the threat that these changes present for values that our tradition considers fundamental. They should force us to make a choice about those values, and about their place in our future.
The Promise for Intellectual Property in Cyberspace
It all depends on whether you really understand the idea of trusted systems. If you don’t understand them, then this whole approach to commerce and digital publishing is utterly unthinkable. If you do understand them, then it all follows easily.
In what we can call the first generation of digital technologies, content owners were unable to control who copied what. If you have a copy of a copyrighted photo rendered in a graphics file, you could make unlimited copies of that file with no effect on the original. When you make the one-hundredth copy, nothing would indicate that it was the one-hundredth copy rather than the first. And as we’ve described again and again, in the original code of the Internet, there was nothing to regulate how or to whom copyrighted content was distributed. The function of “copying” as it was developed by the coders who built it, either in computers or networks, aimed at “copying” — not at “copying” with specified permissions.
This character to the function “copy” was not unique to cyberspace. We have seen a technology that presented the same problem, and I’ve already described how a solution was subsequently built into the technology[13]. Digital Audio Tape (DAT) technology was thought to be a threat to copyright owners. A number of solutions to this threat were proposed. Some people argued for higher penalties for illegal copying of tapes (direct regulation by law). Some, such as Richard Stallman, argued for a tax on blank tapes, with the proceeds compensating copyright holders (indirect regulation of the market by law). Some argued for better education to stop illegal copies of tapes (indirect regulation of norms by law). But some argued for a change in the code of DAT machines that would block unlimited perfect copying.
9.
For a summary of the changes called for by the White Paper, see Bruce Lehman, address before the Inaugural Engelberg Conference on Culture and Economics of Participation in an International Intellectual Property Regime, reprinted in
10.
The most important such threat is the anticircumvention provision of the Digital Millennium Copyright Act, which makes it a crime (subject to complex exceptions) to manufacture code to circumvent a copyright protection mechanism, even if the use of the underlying material itself would be a fair use; see Pub.L. 105–304, 112 Stat 2877 (1998) (prohibiting the manufacture, importation, or distribution of "devices, products, components" that "defeat technological methods of preventing unauthorized use").
11.
See John Perry Barlow, "The Economy of Ideas,"
12.
See Mark Stefik, "Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,"
13.
See Joel R. Reidenberg, "Governing Networks and Rule-Making in Cyberspace,"