Ch10Part9
Version 3, changed by mgarlick. 06/01/2005. Show version history
Private Substitutes for Public Law
[Please see the discussion page for more details comments on how this part could be updated.] But what happens when code protects the interests now protected by copyright law? What happens when Mark Stefik’s vision is realized, and when what the law protects as intellectual property can be protected through code? Should we expect that any of the limits will remain? Should we expect code to mirror the limits that the law imposes? Fair use? Limited term? Would private code build these “bugs” into its protections?
The point should be obvious: when intellectual property is protected by code, nothing requires that the same balance be struck. Nothing requires the owner to grant the right of fair use. She might, just as a bookstore allows individuals to browse for free, but she might not. Whether she grants this right depends on whether it profits her. Fair use becomes subject to private gain.1 [Can this paragraph can be bolstered by reference to the decisions of Corely and its ilk that expressly found no fair use exception exists for the anticircumvention measures/ DRM protection tools. Not sure whether it should be included in the text or whether this becomes a bit encyclopeadic and thus, it should more properly be in the footnotes.]
As privatized law, trusted systems regulate in the same domain where copyright law regulates, but unlike copyright law, they do not guarantee the same public use protection. Trusted systems give the producer maximum control—admittedly at a cheaper cost, thus permitting many more authors to publish. But they give authors more control (either to charge for or limit use) in an area where the law gave less than perfect control. Code displaces the balance in copyright law and doctrines such as fair use.
Some will respond that I am late to the party: copyright law is already being displaced, if not by code then by the private law of contract. Through the use of click-wrap, or shrink-wrap, licenses, authors are increasingly demanding that purchasers, or licensees, waive rights that copyright law gave them. If copyright law gives the right to reverse-engineer, then these contracts might extract a promise not to reverse-engineer. If copyright law gives the right to dispose of the book however the purchaser wants after the first sale, then a contract might require that the user waive that right. And if these terms in the contract attached to every copyright work are enforceable merely by being “attached” and “knowable,” then already we have the ability to rewrite the balance that copyright law creates. Already, through contract law, copyright holders can defeat the balance that copyright law intends. [Can we update this paragraph with recent caselaw about attempts to contract out of copyright exceptions? Again, is it better to do it in the text itself or just a paragraph?]
I agree that this race to privatize copyright law through contract is already far along, fueled in particular by decisions such as Judge Frank Easterbrook’s in ProCD v Zeidenberg2 and by the efforts in some quarters to push a new uniform code that would facilitate these contracts.3 [Should we update the reference to the the UCITA to reflect where it is up to? Suggestions/comments/discussion about how best to do this can take place on the Discussion Page if people prefer.]
But contracts are not as bad as code. Contracts are a form of law. If a term of a contract is inconsistent with a value of copyright law, you can refuse to obey it and let the other side get a court to enforce it. The ultimate power of a contract is a decision by a court—to enforce the contract or not. Although courts today are relatively eager to find ways to enforce these contracts, there is at least hope that if the other side makes its case very clear, courts could shift direction again.4
The same is not true of code. Whatever problems there are when contracts replace copyright law, the problems are worse when code displaces copyright law. Again—where do we challenge the code? When the software protects in a particular way without relying in the end on the state, where can we challenge the nature of the protection? Where can we demand balance when the code takes it away?
The rise of contracts modifying copyright law (due in part to the falling costs of contracting) and the rise of code modifying copyright law (promised as trusted systems become all the more common) raise for us a question that we have not had to answer before. We have never had to choose whether authors should be permitted perfectly to control the use of their intellectual property independent of the law, for such control could only be achieved through law.5 The balance struck by the law was the best that authors could get. But now the code gives authors a better deal. And thus we must now decide whether this better deal makes public sense.
Some argue that it does, and that this increased power to control use in fact is not inconsistent with fair use.6 Fair use, these commentators argue, defined the rights in an area where it was not possible to meter and charge for use. In that context, fair use set a default rule that parties could always contract around. The default rule was that use was free.
Footnotes
1 It is useful to compare the protection that copyright gives to the protection of trade secret law. All of the protection of trade secret law comes, in a sense, from the architectural constraints I have described. One is always permitted, that is, to reverse-engineer to discover a trade secret; see Kewanee Oil Company v Bicron Corporation, 416 US 470, 476 (1974): “A trade secret law . . . does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or . . . reverse engineering.” Edit Delete
2 86 F3d 1447 (7th Cir 1996); see also Easterbrook, “Intellectual Property Is Still Property,” 113–14. For an excellent account of the debate, see Charles R. McManis, “The Privatization (or ‘Shrink-Wrapping’) of American Copyright Law,” California Law Review 87 (1999): 173, 183. Edit Delete
3 This is a reference to the recent battle to draft what was originally called the Uniform Commercial Code 2B, and more recently the Uniform Computer Information Transactions Act (UCITA). By essentially ratifying the click-wrap agreement, this code would facilitate online mass consumer contracts governing the sale of “online information.” This move has been widely criticized; see “Symposium: Intellectual Property and Contract Law for the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Information and Commerce,” California Law Review 87 (1999): 1; Lawrence Lessig, “Pain in the OS,” The Industry Standard, February 5, 1999, available at http://www.lessig.org/content/standard/0,1902,3423,00.html. My criticism is that while the rhetoric of this move is grounded in the “freedom of contract,” the code actually does nothing to ensure that the contracting process produces understanding of the terms of the contract by both parties to the contract. The incentives created by provisions like the “Restatement (Second) of Contracts” ( 211) are not present in the UCITA. UCITA presupposes that if the consumer had a chance to understand, he understands. But from an efficiency perspective, let alone a justice perspective, the consumer is not the cheapest understanding producer. The code simply ratifies the contract that the seller proposes. This is not “freedom of contract,” but contract according to whatever the seller says. For a useful analysis, see Walter A. Effross, “The Legal Architecture of Virtual Stores: World Wide Web Sites and the Uniform Commercial Code,” San Diego Law Review 34 (1997): 1263, 1328–59. Edit Delete
4 See William W. Fisher III, “Compulsory Terms in Internet-Related Contracts,” Chicago-Kent Law Review 73 (1998). Fisher catalogs public policy restrictions on freedom of contract, which he characterizes as “ubiquitous.” Edit Delete
5 An argument is raging about whether, even through law, this modification of the default copyright law should be permitted. Mark A. Lemley has catalogued the provisions of the Copyright Act that are arguably put at risk by contracting behavior; see “Beyond Preemption: The Law and Policy of Intellectual Property Licensing,” California Law Review 87 (1999): 111; see also A. Michael Froomkin, “Article 2B as Legal Software for Electronic Contracting—Operating System or Trojan Horse?,” Berkeley Technology Law Journal 13 (1998): 1023; Michael J. Madison, “Legal-War: Contract and Copyright in the Digital Age,” Fordham Law Review 67 (1998): 1025; David Nimmer et al., “The Metamorphosis of Contract into Expand,” California Law Review 87 (1999): 17; Pamela Samuelson, “Intellectual Property and Contract Law for the Information Age: Foreword,” California Law Review 87 (1999): 1. The questions Lemley raises, however, cannot be easily raised when it is the code that protects the intellectual property interest; Maureen A. O’Rourke, “Copyright Preemption After the ProCD Case: A Market-Based Approach,” Berkeley Technology Law Journal 12 (1997): 53. Edit Delete
6 See Tom W. Bell, “Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine,” North Carolina Law Review 76 (1998): 557, 581–84. Bell argues that technology will prove more effective than fair use in curing the market failure that results when transaction costs discourage otherwise value-maximizing uses of copyrighted work; see also the White Paper observation that “it may be that technological means of tracking transactions and licensing will lead to reduced application and scope of the fair use doctrine” (74). Edit Delete
