Trusted systems in this sense are a privatized alternative to copyright law. They need not be exclusive; there is no reason not to use both law and trusted systems. Nevertheless, the code is effectively doing the work that the law was designed to do. It implements the law’s protection, through code, far more effectively than the law did.
What could be wrong with this? We do not worry when people put double bolts on their doors to supplement the work of the neighborhood cop. We do not worry when they lock their cars and take their keys. It is not an offense to protect yourself rather than rely on the state. Indeed, in some contexts it is a virtue. Andrew Jackson’s mother, for example, told him, “Never tell a lie, nor take what is not your own, nor sue anybody for slander, assault and battery. Always settle them cases yourself.[19]” Self-sufficiency is strength and going to the law a sign of weakness.
There are two steps to answering this question. The first rehearses a familiar but forgotten point about the nature of “property”; the second makes a less familiar, but central, point about the nature of intellectual property. Together they suggest why perfect control is not the control that law has given owners of intellectual property. And together they suggest the potential problem that copyright law in cyberspace will create.
The Limits on the Protection of Property
The realists in American legal history (circa 1890–1930) were scholars who (in part) emphasized the role of the state in what was called “private law.[20]” At the time they wrote, it was the “private” in private law that got all the emphasis. Forgotten was the “law”, as if “property” and “contract” existed independent of the state.
The realists’ aim was to undermine this view. Contract and property law, they argued, gave private parties power[21]. If you breach a contract with me, I can have the court order the sheriff to force you to pay; the contract gives me access to the state power of the sheriff. If your contract with your employer says that it may dismiss you for being late, then the police can be called in to eject you if you refuse to leave. If your lease forbids you to have cats, then the landlord can use the power of the courts to evict you if you do not get rid of the cats. These are all instances where contract and property, however grounded in private action, give a private person an entitlement to the state.
No doubt this power is justified in many cases; to call it “law” is not to call it unjust. The greatest prosperity in history has been created by a system in which private parties can order their lives freely through contract and property. But whether justified in the main or not, the realists argued that the contours of this “law” should be architected to benefit society[22].
This is not communism. It is not an attack on private property, and it is not to say that the state creates wealth (put your Ayn Rand away). These are claims about the relationship between private law and public law, and they should be uncontroversial.
Private law creates private rights to the extent that these private rights serve some collective good. If a private right is harmful to a collective good, then the state has no reason to create it. The state’s interests are general, not particular. It has a reason to create rights when those rights serve a common, rather than particular, end.
The institution of private property is an application of this point. The state has an interest in defining rights to private property because private property helps produce a general, and powerful, prosperity. It is a system for ordering economic relations that greatly benefits all members of society. No other system that we have yet devised better orders economic relations. No other system, some believe, could[23].
But even with ordinary property — your car, or your house — property rights are never absolute. There is no property that does not have to yield at some point to the interests of the state. Your land may be taken to build a highway, your car seized to carry an accident victim to the hospital, your driveway crossed by the postman, your house inspected by health inspectors. In countless ways, the system of property we call “private property” is a system that balances exclusive control by the individual against certain common state ends. When the latter conflict with the former, it is the former that yields.
This balance, the realists argued, is a feature of all property. But it is an especially important feature of intellectual property. The balance of rights with intellectual property differs from the balance with ordinary real or personal property. “Information”, as Boyle puts it, “is different.[24]” And a very obvious feature of intellectual property shows why.
When property law gives me the exclusive right to use my house, there’s a very good reason for it. If you used my house while I did, I would have less to use. When the law gives me an exclusive right to my apple, that too makes sense. If you eat my apple, then I cannot. Your use of my property ordinarily interferes with my use of my property. Your consumption reduces mine.
The law has a good reason, then, to give me an exclusive right over my personal and real property. If it did not, I would have little reason to work to produce it. Or if I did work to produce it, I would then spend a great deal of my time trying to keep you away. It is better for everyone, the argument goes, if I have an exclusive right to my (rightly acquired) property, because then I have an incentive to produce it and not waste all my time trying to defend it[25].
Things are different with intellectual property. If you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it[26]. An unavoidable feature of intellectual property is that its consumption, as the economists like to put it, is “nonrivalrous.” Your consumption does not lessen mine. If I write a song, you can sing it without making it impossible for me to sing it. If I write a book, you can read a copy of it (please do) without disabling me from reading another copy of it. Ideas, at their core, can be shared with no reduction in the amount the “owner” can consume. This difference is fundamental, and it has been understood since the founding.
Jefferson put it better than I:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property[27].
19.
See David Hackett Fischer,
20.
See
21.
See Fried,
22.
Judges have also made this argument; see
23.
This is the epistemological limitation discussed in much of Friedrich A. von Hayek's work; see, for example,
25.
I am hiding a great deal of philosophy in this simplified utilitarian account, but for a powerful economic grounding of the point, see Harold Demsetz, "Toward a Theory of Property Rights,"
26.
For a wonderfully clear introduction to this point, as well as a complete analysis of the law, see Robert P. Merges et al.,
27.
Thomas Jefferson, letter to Isaac Mcpherson, August 13, 1813, reprinted in