The law of copyright is filled with such rules. Another is the “first sale” doctrine. If you buy this book, you can sell it to someone else free of any constraint I might impose on you[35]. This doctrine differs from the tradition in, for example, Europe, where there are “moral rights” that give the creator power over subsequent use[36]. I’ve already mentioned another example — limited term. The creator cannot extend the term for which the law will provide protection (even if Congress can); that is fixed by the statute and runs out when the statute runs out.
Taken together, these rules give the creator significant — but not perfect — control over the use of what he produces. They give the public some access, but not complete access. They are balanced differently from the balance the law strikes for ordinary property — by design. They are constitutionally structured to help build an intellectual and cultural commons.
The law strikes this balance. It is not a balance that would exist in nature. Without the law, and before cyberspace, authors would have very little protection; with the law, they have significant, but not perfect, protection. The law gives authors something they otherwise would not have in exchange for limits on their rights, secured to benefit the intellectual commons as a whole.
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 copyright’s 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 n the law gives you the right to exercise over the copyright. For example, if you own a painting that is in the public domain, there’s 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, you’ve 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 you’re 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, can’t it?
No it can’t, and that’s 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 law’s 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. Couldn’t 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 Easterbrook’s 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.”
35.
The "first sale" doctrine was developed under 27 of the former Copyright Act (17 USC [1970]) and has since been adopted under 109(a) of the present Copyright Act; see
36.
Europeans like to say that "moral rights" have been part of their system since the beginning of time, but as Professor Jane C. Ginsburg has shown with respect to France, they are actually a nineteenth-century creation; see "A Tale of Two Copyrights: Literary Property in Revolutionary France and America,"
37.
Daniel Benoliel, "Technological Standards, Inc.: Rethinking Cyberspace Regulative Epistemology," 92
41.
See William W. Fisher III, "Compulsory Terms in Internet-Related Contracts,"