[Please see discussion  page for some comments & suggestions on how this part could be updated.] The details of the system are not important here¹ (it builds on the encryption architecture I described in chapter 4), but its general idea is easy enough to describe. As the Net is now, basic functions like copying and access are crudely regulated in an all-or-nothing fashion. You generally have the right to copy or not, to gain access or not.

But a more sophisticated system of rights could be built into the Net—not into a different Net, but on top of the existing Net. This system would function by discriminating in the intercourse it has with other systems. A system that controlled access in this more fine-grained way would grant access to its resources only to another system that controlled access in the same way. A hierarchy of systems would develop, and copyrighted material would be traded only among systems that properly controlled access.

Stefik calls this “trusted systems,” and the name evokes a helpful analog. Think of bonded couriers. Sometimes you want to mail a letter with something particularly valuable in it. You could simply give it to the post office, but the post office is not a terribly reliable system; it has relatively little control over its employees, and theft and loss are not uncommon. So instead of going to the post office, you could give your letter to a bonded courier. Bonded couriers are insured, and the insurance is a cost that constrains them to be reliable. This reputation then makes it possible for senders of valuable material to be assured about using their services.

This is what a structure of trusted systems does for owners of intellectual property. It is a bonded courier that takes the thing of value and controls access to and use of it according to the orders given by the principal.

Imagine for a moment that such a structure emerged generally in cyberspace. How would we then think about copyright law?

An important point about copyright law is that, though designed in part to protect authors, its protection was not to be absolute—the copyright is subject to “fair use,” limited terms, and first sale. The law threatened to punish violators of copyright laws—and it was this threat that induced a fairly high proportion of people to comply—but the law was never designed to simply do the author’s bidding. It had public purposes as well as the author’s interest in mind.

Trusted systems provide authors with the same sort of protection. Because authors can restrict unauthorized use of their material, they can extract money in exchange for access. Trusted systems thus achieve what copyright law achieves. But it can achieve this protection without the law doing the restricting.It permits a much more fine-grained control over access to and use of protected material than law permits, and it can do so without the aid of the law.

What copyright seeks to do using the threat of law and the push of norms, trusted systems do through the code. Copyright orders others to respect the rights of the copyright holder before using his property. Trusted systems give access only if rights are respected in the first place. The controls needed to regulate this access are built into the systems, and no users (except hackers) have a choice about whether to obey these controls. The code displaces law by codifying the rules, making them more efficient than they were just as rules.

Trusted systems in this scheme are an alternative for protecting intellectual property rights—a privatized alternative to law. They need not be exclusive; there is no reason not to use both law and trusted systems. Nevertheless, the code in effect is doing the work that the law used to do. It implements the law’s protection, through code, far more effectively than the law did.

What could be wrong with this? We do not worry when people put double bolts on their doors to supplement the work of the neighborhood cop. We do not worry when they lock their cars and take their keys. It is not an offense to protect yourself rather than rely on the state. Indeed, in some contexts it is a virtue. Andrew Jackson’s mother, for example, told him, “Never tell a lie, nor take what is not your own, nor sue anybody for slander, assault and battery. Always settle them cases yourself.”² Self-sufficiency is often seen as a sign of strength, and going to the law as a sign of weakness.

There are two steps to answering this question. The first rehearses a familiar but forgotten point about the nature of property; the second makes a less familiar, but central, point about the nature of intellectual property. Together they suggest why perfect control is not the control that law has given owners of intellectual property.

Footnotes

¹ Ibid. Edit Delete

² David Hackett Fischer, Albion’s Seed: Four British Folkways in America (New York: Oxford University Press, 1989), 765. Edit Delete