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. As Stefik writes:
with trusted systems, a substantial part of the enforcement of a digital contract is carried out by the trusted system. The consumer does not have the option of disregarding a digital contract by, for example, making unauthorized copies of a work. A trusted system refuses to exercise a right that is not sanctioned by the digital contract[17].
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, the control it was designed to create was never to be perfect. As the Supreme Court noted, copyright “protection has never accorded the copyright owner complete control over all possible uses of his work.[18]” Thus, the law grants only particular exclusive rights, and those rights are subject to important limitations, such as “fair use”, limited terms, and the first sale doctrine. 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 aims to, but they 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 the 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 them. The code complements the law by codifying the rules, making them more efficient.
Trusted systems in this sense are a privatized alternative to copyright law. They need not be exclusive; there is no reason not to use both law and trusted systems. Nevertheless, the code is effectively doing the work that the law was designed 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. [19]” Self-sufficiency is strength and going to the law 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. And together they suggest the potential problem that copyright law in cyberspace will create.
The Limits on the Protection of Property
The realists in American legal history (circa 1890–1930) were scholars who (in part) emphasized the role of the state in what was called “private law.[20]” At the time they wrote, it was the “private” in private law that got all the emphasis. Forgotten was the “law”, as if “property” and “contract” existed independent of the state.
The realists’ aim was to undermine this view. Contract and property law, they argued, gave private parties power[21]. If you breach a contract with me, I can have the court order the sheriff to force you to pay; the contract gives me access to the state power of the sheriff. If your contract with your employer says that it may dismiss you for being late, then the police can be called in to eject you if you refuse to leave. If your lease forbids you to have cats, then the landlord can use the power of the courts to evict you if you do not get rid of the cats. These are all instances where contract and property, however grounded in private action, give a private person an entitlement to the state.
No doubt this power is justified in many cases; to call it “law” is not to call it unjust. The greatest prosperity in history has been created by a system in which private parties can order their lives freely through contract and property. But whether justified in the main or not, the realists argued that the contours of this “law” should be architected to benefit society[22].
This is not communism. It is not an attack on private property, and it is not to say that the state creates wealth (put your Ayn Rand away). These are claims about the relationship between private law and public law, and they should be uncontroversial.
Private law creates private rights to the extent that these private rights serve some collective good. If a private right is harmful to a collective good, then the state has no reason to create it. The state’s interests are general, not particular. It has a reason to create rights when those rights serve a common, rather than particular, end.
The institution of private property is an application of this point. The state has an interest in defining rights to private property because private property helps produce a general, and powerful, prosperity. It is a system for ordering economic relations that greatly benefits all members of society. No other system that we have yet devised better orders economic relations. No other system, some believe, could[23].
But even with ordinary property — your car, or your house — property rights are never absolute. There is no property that does not have to yield at some point to the interests of the state. Your land may be taken to build a highway, your car seized to carry an accident victim to the hospital, your driveway crossed by the postman, your house inspected by health inspectors. In countless ways, the system of property we call “private property” is a system that balances exclusive control by the individual against certain common state ends. When the latter conflict
