Reeves’s insight about cyberspace follows the same line. The optimal protection for spaces in cyberspace is a mix between public law and private fences. The question to ask in determining the mix is which protection, on the margin, costs less. Reeves argues that the costs of law in this context are extremely high — in part because of the costs of enforcement, but also because it is hard for the law to distinguish between legitimate and illegitimate uses of cyberspaces. There are many “agents” that might “use” the space of cyberspace. Web spiders, which gather data for web search engines; browsers, who are searching across the Net for stuff to see; hackers (of the good sort) who are testing the locks of spaces to see that they are locked; and hackers (of the bad sort) who are breaking and entering to steal. It is hard, ex ante, for the law to know which agent is using the space legitimately and which is not. Legitimacy depends on the intention of the person granting access.
So that led Reeves to his idea: Since the intent of the “owner” is so crucial here, and since the fences of cyberspace can be made to reflect that intent cheaply, it is best to put all the incentive on the owner to define access as he wishes. The right to browse should be the norm, and the burden to lock doors should be placed on the owner[4].
Now put Reeves’s argument aside, and think for a second about something that will seem completely different but is very much the same idea. Think about “theft” and the protections that we have against it.
• I have a stack of firewood behind my house. No one steals it. If I left my bike out overnight, it would be gone.
• A friend told me that, in a favorite beach town, the city used to find it impossible to plant flowers — they would immediately be picked. But now, he proudly reports, after a long “community spirit” campaign, the flowers are no longer picked.
• There are special laws about the theft of automobiles, planes, and boats. There are no special laws about the theft of skyscrapers. Cars, planes, and boats need protection. Skyscrapers pretty much take care of themselves.
Many things protect property against theft — differently. The market protects my firewood (it is cheaper to buy your own than it is to haul mine away); the market is a special threat to my bike (which if taken is easily sold). Norms sometimes protect flowers in a park; sometimes they do not. Nature sometimes conspires with thieves (cars, planes, and boats) and sometimes against them (skyscrapers).
These protections are not fixed. I could lock my bike and thereby use real-space code to make it harder to steal. There could be a shortage of firewood; demand would increase, making it harder to protect. Public campaigns about civic beauty might stop flower theft; selecting a distinctive flower might do the same. Sophisticated locks might make stolen cars useless; sophisticated bank fraud might make skyscrapers vulnerable. The point is not that protections are given, or unchangeable, but that they are multiplied and their modalities different.
Property is protected by the sum of the different protections that law, norms, the market, and real-space code yield. This is the implication of the argument made in Chapter 7. From the point of view of the state, we need law only when the other three modalities leave property vulnerable. From the point of view of the citizen, real-space code (such as locks) is needed when laws and norms alone do not protect enough. Understanding how property is protected means understanding how these different protections work together.
Reeves’s idea and these reflections on firewood and skyscrapers point to the different ways that law might protect “property” and suggest the range of kinds of property that law might try to protect. They also invite a question that has been asked by Justice Stephen Breyer and many others: Should law protect some kinds of property — in particular, intellectual property — at all[5]?
Among the kinds of property law might protect, my focus in this chapter will be on the property protected by copyright[6]. Of all the different types of property, this type is said to be the most vulnerable to the changes that cyberspace will bring. Many believe that intellectual property cannot be protected in cyberspace. And in the terms that I’ve sketched, we can begin to see why one might think this, but we will soon see that this thought must be wrong.
On the Reports of Copyright’s Demise
Roughly put, copyright gives a copyright holder certain exclusive rights over the work, including, most famously, the exclusive right to copy the work. I have a copyright in this book. That means, among other rights, and subject to some important exceptions, you cannot copy this book without my permission. The right is protected to the extent that laws (and norms) support it, and it is threatened to the extent that technology makes it easy to copy. Strengthen the law while holding technology constant, and the right is stronger. Proliferate copying technology while holding the law constant, and the right is weaker.
In this sense, copyright has always been at war with technology. Before the printing press, there was not much need to protect an author’s interest in his creative work. Copying was so expensive that nature itself protected that interest. But as the cost of copying decreased, and the spread of technologies for copying increased, the threat to the author’s control increased. As each generation has delivered a technology better than the last, the ability of the copyright holder to protect her intellectual property has been weakened.
Until recently, the law’s response to these changes has been measured and gradual. When technologies to record and reproduce sound emerged at the turn of the last century, composers were threatened by them. The law responded by giving composers a new, but limited, right to profit from recordings. When radio began broadcasting music, the composers were held to be entitled to compensation for the public performance of their work, but performers were not compensated for the “performance” of their recordings. Congress decided not to remedy that problem. When cable television started rebroadcasting television broadcasts, the copyright holders in the original broadcasts complained their work was being exploited without compensation. Congress responded by granting the copyright holders a new, but limited, right to profit from the rebroadcasts. When the VCR made it simple to record copyrighted content from off the air, copyright holders cried “piracy.” Congress decided not to respond to that complaint. Sometimes the change in technology inspired Congress to create new rights, and sometimes not. But throughout this history, new technologies have been embraced as they have enabled the spread of culture.
During the same period, norms about copyrighted content also evolved. But the single, defining feature of these norms can perhaps be summarized like this: that a consumer could do with the copyrighted content that he legally owned anything he wanted to do, without ever triggering the law of copyright. This norm was true almost by definition until 1909, since before then, the law didn’t regulate “copies.” Any use the consumer made of copyrighted content was therefore highly unlikely to trigger any of the exclusive rights of copyright. After 1909, though the law technically regulated “copies”, the technologies to make copies were broadly available. There was a struggle about Xerox machines, which forced a bit of reform[7], but the first real conflict that copyright law had with consumers happened when cassette tapes made it easy to copy recorded music. Some of that copying was for the purpose of making a “mixed tape”, and some was simply for the purpose of avoiding the need to buy the original recording. After many years of debate, Congress decided not to legislate a ban on home taping. Instead, in the Audio Home Recording Act, Congress signaled fairly clear exemptions from copyright for such consumer activity. These changes reinforced the norm among consumers that they were legally free to do whatever they wanted with copyrighted work. Given the technologies most consumers had access to, the stuff they wanted to do either did not trigger copyright (e.g.,
