resell their books to a used bookstore), or if it did, the law was modified to protect it (e.g., cassette tapes).
Against the background of these gradual changes in the law, along with the practical norm that, in the main, the law didn’t reach consumers, the changes of digital technology were a considerable shock. First, from the perspective of technology, digital technologies, unlike their analog sister, enabled perfect copies of an original work. The return from copying was therefore greater. Second, also from the perspective of technology, the digital technology of the Internet enabled content to be freely (and effectively anonymously) distributed across the Internet. The availability of copies was therefore greater. Third, from the perspective of norms, consumers who had internalized the norm that they could do with “their content” whatever they wanted used these new digital tools to make “their content” available widely on the Internet. Companies such as Napster helped fuel this behavior, but the practice existed both before and after Napster. And fourth, from the perspective of law, because the base technology of the Internet didn’t reveal anything about the nature of the content being shared on the Internet, or about who was doing the sharing, there was little the law could do to stop this massive “sharing” of content. Thus fifth, and from the perspective of copyright holders, digital technologies and the Internet were the perfect storm for their business model: If they made money by controlling the distribution of “copies” of copyrighted content, you could well understand why they viewed the Internet as a grave threat.
Very quickly, and quite early on, the content industry responded to this threat. Their first line of defense was a more aggressive regime of regulation. Because, the predictions of cyberspace mavens notwithstanding, not everyone was willing to concede that copyright law was dead. Intellectual property lawyers and interest groups pushed early on to have law shore up the protections of intellectual property that cyberspace seemed certain to erase.
Law to the Rescue
The initial response to this push was a White Paper produced by the Commerce Department in 1995. The 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 to 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[8]. 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 were 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[9]. 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.
The second response addressed norms, specifically copying norms. The report recommended increased educational efforts, both in 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.
The third and fourth responses mixed technology and the market. The report called for legal support — through financial subsidies and special legal protection — of “copyright management schemes.” These “schemes” were simply technologies 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 them 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 would be supported by government funding and by the threat of criminal sanctions for anyone deploying software to crack them[10].
Congress followed the recommendations of the 1995 White Paper in some respects. The most important was the enactment of the Digital Millennium Copyright Act in 1998. That statute implemented directly the recommendation that “technological protection measures” be protected by law. Code that someone implements to control either access to or use of a copyrighted work got special legal protection under the DMCA: Circumvention of that code, subject to a few important exceptions, constituted a violation of the law.
We will return to the DMCA later. The point just now, however, is to recognize something important about the presumption underlying the White Paper. 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, and moderation seems right. But something is missing from this approach. The White Paper proceeds as if the problem of protecting intellectual property in cyberspace was 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. Code can, and increasingly will, displace law as the primary defense of intellectual property in cyberspace. Private fences, not public law.
The White Paper did not see this. Built into its scattershot of ideas is one that is crucial to its approach but fundamentally incorrect — 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, 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[11]. 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.
That’s a big claim. To see it, however, and to see the consequences it entails, we need consider three
