[Please see the Discussion Page for suggestions/thoughts on how to update this Part.  Please feel free to contribute edits directly to the text or to suggest & discuss ideas on the Discussion Page.]  But as the limits of what it is possible to meter and charge for changes, the scope of fair use changes as well.¹ If it becomes possible to license every aspect of use, then no aspect of use would have the protections of fair use. Fair use, under this conception, was just the space where it was too expensive to meter use. By eliminating that space, cyberspace merely forces us to recognize the change in the context within which fair use functions.

There are then, from this view, two very different conceptions of fair use.² One conception views it as inherent in the copyright—required whether technology makes it possible to take it away or not; the other views it as contingent—needed where technology makes it necessary. We can choose between these two conceptions, if indeed our constitutional commitment is ambiguous.

A nice parallel to this problem exists in constitutional law. The framers gave Congress the power to regulate interstate commerce and commerce that affects interstate commerce.³ 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.⁴

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.⁵ 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.⁶

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 authority⁷ or that the federal government was to have whatever power affected interstate commerce.⁸ 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,⁹ or that it is just an inefficient consequence of inefficient technology, to be removed as soon as efficiency can be achieved.¹⁰

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 time: 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.”¹¹

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 now a second.

Footnotes

¹ See Bell, “Fair Use vs. Fared Use,” 582–84; U.S. Department of Commerce, Task Force—Working Group on Intellectual Property Rights, “Intellectual Property and the National Information Infrastructure,” 66 n.228, notes the difficulty of defining the bounds of the fair use doctrine. Edit Delete

¹⁰ See Mark Gimbel (“Some Thoughts on the Implications of Trusted Systems for Intellectual Property Law,” Stanford Law Review 50 [1998]: 1671, 1686), who notes that fair use can be “explained as a method of curing the market failure that results when high transaction costs discourage otherwise economically efficient uses of copyrighted material,” and that “because technologies like trusted systems promise to reduce the costs of licensing copyrighted works—thereby curing this market failure—some argue that the doctrine of fair use will for the most part be rendered unnecessary, obviating the need to regulate technologies that undermine it”; Lydia Pallas Loren (“Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems,” Journal of Intellectual Property Law 5 [1997]: 1, 7) asserts that under a “narrowed market failure view of fair use, if a copyright owner can establish an efficient ‘permission system’ to collect fees for a certain kind of use, then the copyright owner will be able to defeat a claim of fair use.” Edit Delete

¹¹ Stefik, “Letting Loose the Light,” 244. Edit Delete

² For a foundational modern work on the nature of fair use, see Wendy J. Gordon, “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors,” Columbia Law Review 82 (1982): 1600. A more recent work by William Fisher (“Reconstructing the Fair Use Doctrine,” Harvard Law Review 101 [1988]: 1659, 1661–95) considers both the efficiency and utopian goals of copyright law. Edit Delete

³ 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). Edit Delete

⁴ See Bernard C. Gavit, The Commerce Clause of the United States Constitution (Bloomington, Ind.: Principia Press, 1932), 84. Edit Delete

⁵ See Pensacola Telegraph Company v Western Union Telegraph Company, 96 US 1, 9 (1877). Edit Delete

⁶ 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. Edit Delete

⁷ 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. Edit Delete

⁸ 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). Edit Delete

⁹ 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.” Edit Delete