I was a student at an English university for a number of years. In the college I attended, there was a “buttery” — a shop inside the college that basically sold alcohol. During the first week I was there I had to buy a large amount of Scotch (a series of unimaginative gifts, as I remember). About a week after I made these purchases, I received a summons from my tutor to come talk with him in his office. When I arrived, the tutor asked me about my purchases. This was, to his mind, an excessive amount of alcohol, and he wanted to know whether I had a good reason for buying it.
Needless to say, I was shocked at the question. Of course, technically, I had made a purchase at the college, and I had not hidden my name when I did so (indeed, I had charged it on my college account), so, formally, I had revealed my alcohol purchases to the college and its agents. Still, it shocked me that this information would be monitored by college authorities and then checked up on. I could see why they did it, and I could see the good that might come from it. It just never would have occurred to me that these data would be used in this way.
If this was an invasion, of course, it was a small one. Later it was easy for me to hide my binges simply by buying from a local store rather than the college buttery. (Though I later learned that the local store rented its space from the college, so who knows what deal they had struck?) And in any case, I was not being punished. The college was just concerned. But the example suggests a more general point: We reveal to the world a certain class of data about ourselves that we ordinarily expect the world not to use. What happens when they use it?
Trusted systems depend on such data — they depend on the ability to know how people use the property that is being protected. To set prices most efficiently, the system ideally should know as much about individuals and their reading habits as possible. It needs to know this data because it needs an efficient way to track use and so to charge for it[54].
But this tracking involves a certain invasion. We live now in a world where we think about what we read in just the way that I thought about what I bought as a student in England — we do not expect that anyone is keeping track. We would be shocked if we learned that the library was keeping tabs on the books that people checked out and then using this data in some monitoring way.
Such tracking, however, is just what trusted systems require. And so the question becomes: Should there be a right against this kind of monitoring? The question is parallel to the question of fair use. In a world where this monitoring could not effectively occur, there was, of course, no such right against it. But now that monitoring can occur, we must ask whether the latent right to read anonymously, given to us before by imperfections in technologies, should be a legally protected right.
Julie Cohen argues that it should, and we can see quite directly how her argument proceeds[55]. Whatever its source, it is a value in this world that we can explore intellectually on our own. It is a value that we can read anonymously, without fear that others will know or watch or change their behavior based on what we read. This is an element of intellectual freedom; it is a part of what makes us as we are[56].
But this element is potentially erased by trusted systems. These systems need to monitor, and this monitoring destroys anonymity. We need to decide whether, and how, to preserve values from today in a context of trusted systems.
This could first be a question of translation: namely, how should changes in technology be accommodated to preserve values from an earlier context in a new context? It is the same question that Brandeis asked about wiretapping[57]. It is the question the Court answers in scores of contexts all the time. It is fundamentally a question about preserving values when contexts change.
In the context of both fair use and reading, Cohen has a consistent answer to this question of translation. She argues that there is a right to resist, or “hack”, trusted systems to the extent that they infringe on traditional fair use. (Others have called this the “Cohen Theorem.”) As for reading, she argues that copyright management schemes must protect a right to read anonymously — that if they monitor, they must be constructed so that they preserve anonymity. The strategy is the same: Cohen identifies a value yielded by an old architecture but now threatened by a new architecture, and then argues in favor of an affirmative right to protect the original value.
But here again we might view the question more ambiguously. I share Cohen’s view, but the argument on the other side is not silly. If it’s permissible to use technology to make copyrighted works available, why isn’t it permissible to gather data about who uses what works? That data gathering is not part of the copyright itself; it is a byproduct of the technology. And as our tradition has never had this technical capacity before, it is hard to say a choice was made about it in the past.
Permission Culture vs. Free
I’ve already described the limits copyright law places on itself. These limits, as I argued, reflect important values. They express the balance that copyright law aims to be.
But what is too often missed in this discussion of balance is any sense of perspective. We focus on the gradual shifts in the law but miss the profound sense in which the significance of the law has changed.
This change is produced by the unintended interaction between the architecture of digital technologies and the architecture of the law.
Copyright law at its core regulates “copies.” In the analog world, there were very few contexts in which one produced “copies.” As Jessica Litman described more than a decade ago,
At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand, but it didn’t apply to very many people or very many things. If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one’s business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem[58].
Thus there were many ways in which you could use creative work in the analog world without producing a copy.
Digital technology, at its core, makes copies. Copies are to digital life as breathing is to our physical life. There is no way to use any content in a digital context without that use producing a copy. When you read a book stored on your computer, you make a copy (at least in the RAM memory to page through the book). When you do anything with digital content, you technically produce a copy.
This technical fact about digital technologies, tied to the technical architecture of the law, produces a profound shift in the scope or reach of the law of copyright that too many simply miss: While in the analog world, life was sans copyright law; in the digital world, life is subject to copyright law. Every single act triggers the law of copyright. Every single use is either subject to a license or illegal, unless deemed to be “fair use.” The emergence of digital technologies has thus radically increased the domain of copyright law — from regulating a tiny portion of human life, to regulating absolutely every bit of life on a computer.
Now if all you think about is protecting the distribution of professionally created culture, this might not concern you much. If you’re trying to stop “piracy”, then a regime that says every use requires permission is a regime that gives you a fairly broad range of tools for stamping out piracy.
54.
Efficient here both in the sense of cheap to track and in the sense of cheap to then dis criminate in pricing; William W. Fisher III, "Property and Contract on the Internet,"
55.
Julie E. Cohen, "A Right to Read Anonymously: A Closer Look at `Copyright Man agement' in Cyberspace,"
56.
"The freedom to read anonymously is just as much a part of our tradition, and the choice of reading materials just as expressive of identity, as the decision to use or withhold one's name" (Cohen, "A Right to Read Anonymously," 1012).
57.
See
58.
See Jessica Litman, "The Exclusive Right to Read,"