Code 2.0

Again, that conclusion could be questioned by recognizing that the possibility of such extensive regulation didn’t exist, and so the choice about whether such extensive regulation should be allowed wasn’t made. That choice, when made, should recognize that while there is extensive and new regulation of amateur culture, that regulation creates new wealth for professional culture. There’s a choice to be made about which form of culture we should protect. That choice has not yet been made directly. It is one more choice we have yet to make.

The Problems That Perfection Makes

These three examples reveal a common pattern — one that will reach far beyond copyright. At one time we enjoyed a certain kind of liberty. But that liberty was not directly chosen; it was a liberty resulting from the high costs of control[65]. That was the conclusion we drew about fair use — that when the cost of control was high, the space for fair use was great. So too with anonymous reading: We read anonymously in real space not so much because laws protect that right as because the cost of tracking what we read is so great. And it was the same with amateur culture: That flourished free of regulation because regulation could not easily reach it.

When costs of control fall, however, liberty is threatened. That threat requires a choice — do we allow the erosion of an earlier liberty, or do we erect other limits to re-create that original liberty?

The law of intellectual property is the first example of this general point. As the architecture of the Internet changes, it will allow for a greater protection of intellectual property than real-space architectures allowed; this greater protection will force a choice on us that we do not need to make in real space. Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use or a certain space for individual freedom?

Ignoring these questions will not make them go away. Pretending that the framers answered them is no solution either. In this context (and this is just the first) we will need to make a judgment about which values the architecture will protect.

Choices

I’ve argued that cyberspace will open up three important choices in the context of intellectual property: whether to allow intellectual property in effect to become completely propertized (for that is what a perfect code regime for protecting intellectual property would do); and whether to allow this regime to erase the anonymity latent in less efficient architectures of control; and whether to allow the expansion of intellectual property to drive out amateur culture. These choices were not made by our framers. They are for us to make now.

I have a view, in this context as in the following three, about how we should exercise that choice. But I am a lawyer. Lawyers are taught to point elsewhere — to the framers, to the United Nations charter, to an act of Congress — when arguing about how things ought to be. Having said that there is no such authority here, I feel as if I ought to be silent.

Cowardly, not silent, however, is how others might see it. They say that I should say what I think. So in each of these three applications (intellectual property, privacy, and free speech), I will offer my view about how these choices should be made. But I do this under some duress and encourage you to simply ignore what I believe. It will be short, and summary, and easy to discard. It is the balance of the book — and, most importantly, the claim that we have a choice to make — that I really want to stick.

Anonymity

Cohen, it seems to me, is plainly right about anonymity, and the Cohen Theorem is inspirational. However efficient the alternative may be, we should certainly architect cyberspaces to ensure anonymity — or more precisely, pseudonymity — first. If the code is going to monitor what I do, then at least it should not know that it is “I” that it is monitoring. I am less troubled if it knows that “14AH342BD7” read such and such; I am deeply troubled if that number is tied back to my name.

Cohen is right for a second reason as welclass="underline" All of the good that comes from monitoring could be achieved while protecting privacy. It may take a bit more coding to build in routines for breaking traceability; it may take more planning to ensure that privacy is protected. But if those rules are embedded up front, the cost would not be terribly high. It is far cheaper to architect privacy protections now rather than retrofit for them later.

The Commons

By “the Commons” I mean a resource that anyone within a relevant community can use without seeking the permission of anyone else. Such permission may not be required because the resource is not subject to any legal control (it is, in other words, in the public domain). Or it may not be required because permission to use the resource has already been granted. In either case, to use or to build upon this resource requires nothing more than access to the resource itself[66].

In this sense, the questions about the scope and reach of copyright law ask whether our future will protect the intellectual commons that it did in the past. Again, it did so in the past because the friction of control was too great. But now that that friction is gone, will we preserve or destroy the commons that used to exist?

My view is that it ought to be preserved.

We can architect cyberspace to preserve a commons or not. (Jefferson thought that nature had already done the architecting, but Jefferson wrote before there was code.) We should choose to architect it with a commons. Our past had a commons that could not be designed away; that commons gave our culture great value. What value the commons of the future could bring us is something we are just beginning to see. Intellectual property scholars saw it — long before cyberspace came along — and laid the groundwork for much of the argument we need to have now[67]. The greatest work in the law of cyberspace has been written in the field of intellectual property. In a wide range of contexts, these scholars have made a powerful case for the substantive value of an intellectual commons[68].

James Boyle puts the case most dramatically in his extraordinary book Shamans, Software, and Spleens[69]. Drawing together both cyberspace and noncyberspace questions, he spells out the challenge we face in an information society — particularly the political challenge[70]. Elsewhere he identifies our need for an “environmental movement” in information policy — a rhetoric that gets people to see the broad range of values put at risk by this movement to propertize all information. Boyle’s work has inspired many others to push a similar agenda of freedom[71].

That freedom would limit the law’s regulation over the use and reuse of culture. It would resist perfect control over use; it would free a wide range of reuse. It would build through affirmative protections for freedom the liberty that friction gave us before. It would do so because it believes in the values this freedom stands for, and it would demonstrate the value in that freedom by enabling the communities that freedom would itself enable.

65.

Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwell's 1984; see Orwell's Revenge: The 1984 Palimpsest (New York: Maxwell Macmillan International, 1994). But this is a weak basis on which to build liberty, especially as the cost of networked control drops. Frances Cairncross (The Death of Distance: How the Communications Revolution Will Change Our Lives [Boston: Harvard Business School Press, 1997], 194–95) effectively challenges the idea as well.

66.

Lessig, The Future of Ideas: The Fate of the Commons in a Connected World , 19–23.

67.

A founding work is David Lange, "Recognizing the Public Domain," Law and Contem- porary Problems 44 (1981): 147. There are many important foundations, however, to this argument. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967). Gordon ("Fair Use as Market 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.

68.

In the first edition to this book, in addition to Boyle, I acknowledged broadly the work that had informed my understanding, including Keith Aoki, "Foreword to Innovation and the Information Environment: Interrogating the Entrepreneur," Oregon Law Review 75 (1996): 1; in "(Intellectual) Property and Sovereignty," Aoki discusses the challenges to the traditional concept of property that arise from the growth of digital information technology; in "Authors, Inventors, and Trademark Owners: Private Intellectual Property and the Public Domain" (Columbia-VLA Journal of Law and the Arts 18 [1993]: 1), he observes the shifting boundaries in intellectual property law between "public" and "private" realms of information and argues that trends to increase the number of exclusive rights for authors are converting the public domain into private intellectual property and constraining other types of socially valuable uses of expressive works that do not fit the "authorship" model underlying American copyright traditions; he also argues that recent expansion of trademark law has allowed trademark owners to obtain property rights in their trademarks that do not further the Lanham Act's goal of preventing consumer confusion. Benkler, "Free as the Air to Common Use"; Yochai Benkler, "Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment," Harvard Journal of Law and Technology 11 (1998): 287; Julie E. Cohen, "Copyright and the Jurisprudence of Self-Help," Berkeley Technology Law Journal 13 (1998): 1089; Julie E. Cohen, "Lochner in Cyberspace: The New Economic Orthodoxy of `Rights Management,'" Michigan Law Review 97 (1998): 462; Julie E. Cohen, "Some Reflections on Copyright Management Systems and Laws Designed to Protect Them," Berkeley Technology Law Journal 12 (1997): 161, 181–82; Julie E. Cohen, "Reverse-Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of `Lock-Out' Programs," Southern California Law Review 68 (1995): 1091. Niva Elkin-Koren, "Contracts in Cyberspace: Rights Without Laws," Chicago-Kent Law Review 73 (1998); Niva Elkin-Koren, "Copyright Policy and the Limits of Freedom of Contract," Berkeley Technology Law Journal 12 (1997): 93, 107–10 (criticizing the ProCD decision); Niva Elkin-Koren, "Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace," Cardozo Arts and Entertainment Law Journal 14 (1996): 215; in "Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators" (Cardozo Arts and Entertainment Law Journal 13 [1995]: 345, 390–99), Elkin-Koren analyzes the problems created by applying copyright law in a digitized environment. In "Goodbye to All That — A Reluctant (and Perhaps Premature) Adieu to a Constitutionally Grounded Discourse of Public Interest in Copyright Law" (Vanderbilt Journal of Transnational Law 29 [1996]: 595), Peter A. Jaszi advocates the development of new, policygrounded arguments and constitutionally based reasoning to battle expansionist legislative and judicial tendencies in copyright to diminish public access to the "intellectual commons"; see also Peter A. Jaszi, "On the Author Effect: Contemporary Copyright and Collective Creativity," Cardozo Arts and Entertainment Law Journal 10 (1992): 293, 319–20; Peter A. Jaszi, "Toward a Theory of Copyright: The Metamorphoses of `Authorship,'" Duke Law Journal 1991 (1991): 455. On the misuse of copyright, see Mark A. Lemley, "Beyond Preemption: The Law and Policy of Intellectual Property Licensing," 87 California Law Review, 111 (1999); Mark A. Lemley, "The Economics of Improvement in Intellectual Property Law," Texas Law Review 75 (1997): 989, 1048–68; in "Intellectual Property and Shrink-wrap Licenses" (Southern California Law Review 68 [1995]: 1239, 1239), Lemley notes that "software vendors are attempting en masse to `opt out' of intellectual property law by drafting license provisions that compel their customers to adhere to more restrictive provisions than copyright . . . law would require." Jessica Litman ("The Tales That Article 2B Tells," Berkeley Technology Law Journal 13 [1998]: 931, 938) characterizes as "dubious" the notion that current law enables publishers to make a transaction into a license by so designating it. In her view, article 2B is "confusing and confused" about copyright and its relationship with that law, and would make new law. She believes that "whatever the outcome" of the debate over whether copyright makes sense in the digital environment (see "Reforming Information Law in Copyright's Image," Dayton Law Review 22 [1997]: 587, 590), "copyright doctrine is ill-adapted to accommodate many of the important interests that inform our information policy. First Amendment, privacy, and distributional issues that copyright has treated only glancingly are central to any information policy." See also Jessica Litman, "Revising Copyright Law for the Information Age," Oregon Law Review 75 (1996): 19; and "The Exclusive Right to Read" (Cardozo Arts and Entertainment Law Journal 13 [1994]: 29, 48), in which Litman states that "much of the activity on the net takes place on the mistaken assumption that any material on the Internet is free from copyright unless expressly declared to be otherwise." In "Copyright as Myth" (University of Pittsburgh Law Review 53 [1991]: 235, 235–37), Litman provides a general overview of the issues of authorship and infringement in copyright law, indicating that debate continues regarding the definition of "authorship" (she defines "author" in the copyright sense of anyone who creates copyrightable works, whether they be books, songs, sculptures, buildings, computer programs, paintings or films [236, n.5]); she also discusses why copyright law is counterintuitive to the authorship process. See also "The Public Domain" (Emory Law Journal 39 [1990]: 965, 969), in which Litman recommends a broad definition of the public domain (originality is a keystone of copyright law [974]). Neil Weinstock Netanel, "Asserting Copyright's Democratic Principles in the Global Arena," Vanderbilt Law Review 51 (1998): 217, 232 n.48, 299 n.322; Neil Netanel, "Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, _Cardozo Arts and Entertainment Law Journal_ 12 (1994): 1, 42–43; in [Copyright and a Democratic Civil Society]: 283, 288, 324–36), Netanel analyzes copyright law and policy in terms of its democracy-enhancing function: "Copyright is in essence a state measure that uses market institutions to enhance the democratic character of society." Margaret Jane Radin and Polk Wagner, "The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace," Chicago-Kent Law Review 73 (1998); Margaret Jane Radin, Reinterpreting Property (Chicago: University of Chicago Press, 1993), 56–63. Pam Samuelson, "Encoding the Law into Digital Libraries," Communications of the ACM 41 (1999): 13, 13–14; Pamela Samuelson, foreword to "Symposium: Intellectual Property and Contract Law for the Information Age," California Law Review 87 (1998): 1; Pamela Samuelson observes in "Embedding Technical Self-Help in Licensed Software" (Communications of the ACM 40 [1997]: 13, 16) that "licensors of software or other information . . . will generally invoke selfhelp"; see also the criticism of the European database directive in J. H. Reichman and Pamela Samuelson, "Intellectual Property Rights in Data?," Vanderbilt Law Review 50 (1997): 51, 84–95; Samuelson, "The Copyright Grab," 134; Pamela Samuelson, "Fair Use for Computer Programs and Other Copyrightable Works in Digital Form: The Implications of Sony, Galoob and Sega," Journal of Intellectual Property Law 1 (1993): 49. There is much more that I have learned from in the last seven years. But rather than repli cating the listing style, I would point to Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2000); Vaidhyanathan, Copyrights and Copywrongs; William Fisher, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford: Stanford University Press, 2004), and Benkler, The Wealth of Networks .

69.

Boyle, Shamans, Software, and Spleens . For other compelling accounts of the general movement to propertize information, see Debora J. Halbert, Intellectual Property in the Information Age: The Politics of Expanding Ownership Rights (Westport, Conn.: Quorum, 1999). Seth Shulman's Owning the Future (Boston: Houghton Mifflin, 1999) gives the story its appropriate drama. Internet Publishing and Beyond: The Economics of Digital Information and Intellectual Property (Brian Kahin and Hal R. Varian, eds., Cambridge, Mass.: MIT Press, 2000) (Internet publishing and intellectual property). A Handbook of Intellectual Property Management: Protecting, Developing and Exploiting Your IP Assets (Adam Jolly and Jeremy Philpott eds. London: Kogan Page, 2004) (intellectual property and intangible property).

70.

"We favor a move away from the author vision in two directions; first towards recog nition of a limited number of new protections for cultural heritage, folkloric productions, and biological `know-how.' Second, and in general, we favor an increased recognition and protection of the public domain by means of expansive `fair use protections,' compulsory licensing, and narrower initial coverage of property rights in the first place"; Boyle, Shamans, Software, and Spleens, 169.

71.

James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?," Duke Law Journal 47 (1997): 87.