Law to the Rescue

[Please see discussion page for more comments about updating this part. Obviously, this part needs considerable updating to talk about what the White Paper became.]The product of the original push was a White Paper produced by the Commerce Department in 1995 after soliciting comments for more than two years about how cyberspace threatened copyright.¹ The White Paper outlined a series of modifications aimed, it said, at restoring “balance” in intellectual property law. Entitled “Intellectual Property and the National Information Infrastructure,” the report sought to restate existing intellectual property law in terms that anyone could understand, as well as recommend changes in the law in response to the changes the Net would bring. But as scholars quickly pointed out, the first part was a bust.² The report no more “restated” existing law than Soviet historians “retold” stories of Stalin’s administration. The restatement had a tilt, very definitely in the direction of increased intellectual property protection, but it pretended that its tilt was the natural lay of the land.

For our purposes, however, it is the recommendations that are most significant. The government proposed four responses to the threat presented by cyberspace. In the terms of chapter 7, these responses should be familiar.

The first response was traditional. The government proposed changes in the law of copyright to “clarify” the rights that it was to protect.³ These changes were intended to better define the rights granted under intellectual property law and to further support these rights with clarified (and possibly greater) legal penalties for their violation.

But the proposal went far beyond these traditional means. A second recommendation was for increased educational efforts, both in the schools and among the general public, about the nature of intellectual property and the importance of protecting it. In the terms of chapter 7, this is the use of law to change norms so that norms will better support the protection of intellectual property. It is an indirect regulation of behavior by direct regulation of norms.

Education was not, however, the most significant indirect regulation. More interesting for our purposes was the government’s financial and legal support for the development of copyright management schemes—software that would make it easier to control access to and use of copyrighted material. We will explore these schemes at some length later in this chapter, but I mention it now as another example of indirect regulation—using the market to subsidize the development of a certain software tool, and using law to regulate the properties of other software tools. Copyright management systems are supported by government funding, and the threat of felony conviction hangs over anyone interested in designing software to crack them.⁴

The 1995 package of proposals was a scattershot of techniques—some changes in law, some support for changing norms, and lots of support for changing the code of cyberspace to make it better able to protect intellectual property. Perhaps nothing better than this could have been expected in 1995. The law promised a balance of responses to deal with the shifting balance brought on by cyberspace.

Balance is attractive. Moderation seems right. But something is missing from this approach. The White Paper proceeds as if the problem of protecting intellectual property in cyberspace were just like the problem of protecting intellectual property in real space. It proceeds as if the four constraints would operate in the same proportions as in real space, as if nothing fundamental had changed.

But something fundamental has changed: the role that code plays in the protection of intellectual property has changed. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law.

The White Paper does not see this. Built into its scattershot of ideas is one that is crucial to its approach but fundamentally wrong—the idea that the nature of cyberspace is anarchy. The White Paper promises to strengthen law in every area it can. But it approaches the question like a ship battening down for a storm: whatever happens, the threat to copyright is real, damage will be done, and the best we can do is ride it out.

This is fundamentally wrong. We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. The power to regulate access to and use of copyrighted material is about to be perfected. Whatever the mavens of the mid-1990s may have thought, cyberspace is about to give holders of copyrighted property the biggest gift of protection they have ever known.

In such an age—in a time when the protections are being perfected—the real question for law is not, how can law aid in that protection? but rather, is the protection too great? The mavens were right when they predicted that cyberspace will teach us that everything we thought about copyright was wrong.⁵ But the lesson in the future will be that copyright is protected far too well. The problem will center not on copy-right but on copy-duty—the duty of owners of protected property to make that property accessible.

Footnotes

¹ U.S. Department of Commerce, Task Force—Working Group on Intellectual Property Rights, “Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights,” available at http://www.uspto.gov/web/offices/com/doc/ipnii/ (visited May 30, 1999, and hereinafter referred to as the White Paper). See also Boyle, “Intellectual Property Policy Online,” 66. Edit Delete

² George Smirnoff III (“Copyright on the Internet: A Critique of the White Paper’s Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, Online Service Provider Liability,” Cleveland State Law Review 44 [1996]: 197) criticizes the White Paper’s lack of completeness, inconsistencies, and apparent lack of adequate consideration; see also Pamela Samuelson, “The Copyright Grab,” Wired (January 1996): 134, 136. By contrast, Gary W. Glisson (“A Practitioner’s Defense of the White Paper,” Oregon Law Review 75 [1996]: 277) argues that the White Paper is neither a misleading summary of the state of intellectual property law nor a proposal for dramatic changes. For an extensive analysis of the copyright issues raised by cyberspace, see Trotter Hardy, “Project Looking Forward: Sketching the Future of Copyright in a Networked World,” U.S. Copyright Office final report (1998), available atwww.copyright.gov/reports/thardy.pdf. Edit Delete

³ For a summary of the changes called for by the White Paper, see Bruce Lehman, address before the Inaugural Engelberg Conference on Culture and Economics of Participation in an International Intellectual Property Regime, reprinted in New York University Journal of International Law and Politics 29 (1996–97): 211, 213–15; White Paper, 17. Edit Delete

⁴ The latest such threat is the anticircumvention provision of the Digital Millennium Copyright Act, which makes it a crime (subject to complex exceptions) to manufacture code to circumvent a copyright protection mechanism, even if the use of the underlying material itself would be a fair use; see Pub.L. 105–304, 112 Stat 2877 (1998) (prohibiting the manufacture, importation, or distribution of “devices, products, components” that “defeat technological methods of preventing unauthorized use”). Edit Delete

⁵ See Barlow, “The Economy of Ideas,” 129; see also John Perry Barlow, “Papers and Comments of a Symposium on Fundamental Rights on the Information Superhighway,” Annual Survey of American Law 1994 (1994): 355, 358. Barlow argues that “it is not so easy to own that which has never had any physical dimension whatsoever,” unlike traditional forms of property. “We have tended to think,” he adds, “that copyright worked well because it was physically difficult to transport intellectual properties without first manifesting them in some physical form. And it is no longer necessary to do that.” Edit Delete

⁶ See Mark Stefik, “Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us to Rethink Digital Publishing,” Berkeley Technology Law Journal 12 (1997): 137; Mark Stefik, “Trusted Systems,” Scientific American (March 1997): 78; Mark Stefik, “Letting Loose the Light: Igniting Commerce in Electronic Publication,” in Stefik, Internet Dreams, 220–22, 226–28. Edit Delete