Code 2.0

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 don’t mean to enter the extremely contentious debate about whether this change in control is good or appropriate. I’ve 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 has always 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.

The Anonymity That Imperfection Allows

42.

Stefik, The Internet Edge, 91–7.

43.

See Lessig, Free Culture: The Nature and Future of Creativity , xiv–xvi.

44.

Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward," University of Colorado Law Review 71 (2000): 1203, 1254.

45.

See Campbell v. Acuff-Rose Publishing, 510 U.S. 569 (1994). Gordon ("Fair Use as Mar ket Failure") argues that the courts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J. Gordon, "On Owning Information: Intellectual Property and Restitutionary Impulse," Virginia Law Review 78 (1992): 149. In "Reality as Artifact: From Feist to Fair Use" (Law and Contemporary Problems 55 5PG [1992]: 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts, which need to be widely available for public dissemination. Gordon's "Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship" (University of Chicago Law Review 57 [1990]: 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, "An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory," Stanford Law Review 41 (1989): 1343.

46.

See Gibbons v. Ogden, 22 US 1 (1824) (striking down New York's grant of a monopoly of steamboat navigation on the Hudson River as inconsistent with the federal Coasting Act of 1793); McCulloch v. Maryland, 17 US 316 (1819) (pronouncing that Congress has the power to do what is "necessary and proper" to achieve a legitimate end, like the regulation of interstate commerce).

47.

See Bernard C. Gavit, The Commerce Clause of the United States Constitution (Bloom ington, Ind.: Principia Press, 1932), 84.

48.

See Pensacola Telegraph Company v. Western Union Telegraph Company, 96 US 1, 9 (1877).

49.

As one commentator put it near the turn of the century: "If the power of Congress has a wider incidence in 1918 than it could have had in 1789, this is merely because production is more dependent now than then on extra-state markets. No state liveth to itself alone to any such extent as was true a century ago. What is changing is not our system of government, but our economic organization"; Thomas Reed Powell, "The Child Labor Law, the Tenth Amendment, and the Commerce Clause," Southern Law Quarterly 3 (1918): 175, 200–201.

50.

See Alexis de Tocqueville, Democracy in America, vol. 1 (New York: Vintage, 1990), 158–70, on the idea that the framers' design pushed states to legislate in a broad domain and keep the local government active.

51.

See Maryland v. Wirtz, 392 US 183, 201 (1968) (Justice William O. Douglas dissenting: The majority's bringing of employees of state-owned enterprises within the reach of the commerce clause was "such a serious invasion of state sovereignty protected by the Tenth Amendment that it . . . [was] not consistent with our constitutional federalism"); State Board of Insurance v. Todd Shipyards Corporation, 370 US 451, 456 (1962) (holding that "the power of Congress to grant protection to interstate commerce against state regulation or taxation or to withhold it is so complete that its ideas of policy should prevail") (citations omitted).

52.

See Michael G. Frey, "Unfairly Applying the Fair Use Doctrine: Princeton University Press v Michigan Document Services, 99 F3d 1381 (6th Cir 1996)," University of Cincinnati Law Review 66 (1998): 959, 1001; Frey asserts that "copyright protection exists primarily for the benefit of the public, not the benefit of individual authors. Copyright law does give authors a considerable benefit in terms of the monopolistic right to control their creations, but that right exists only to ensure the creation of new works. The fair use doctrine is an important safety valve that ensures that the benefit to individual authors does not outweigh the benefit to the public"; Marlin H. Smith ("The Limits of Copyright: Property, Parody, and the Public Domain," Duke Law Journal 42 [1993]: 1233, 1272) asserts that "copyright law is better understood as that of a gatekeeper, controlling access to copyrighted works but guaranteeing, via fair use, some measure of availability to the public."

53.

Stefik, "Letting Loose the Light," 244. For an excellent use of the general analysis of Code to argue that the specific analysis of this chapter is mistaken, see John Tehranian, "All Rights Reserved? Reassessing Copyright and Patent Enforcement in the Digital Age," University of Cincinnati Law Review 72 (2003): 45.