in their writings and discoveries, only an exclusive right over them for a limited time.
The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property. I’ve said that all property is granted subject to the limit of the public good. But even so, if the government decided to nationalize all property after a fifteen-year term of ownership, the Constitution would require it to compensate the owners. By contrast, if Congress set the copyright term at fifteen years, there would be no claim that the government pay compensation after the fifteen years were up. Intellectual property rights are a monopoly that the state gives to producers of intellectual property in exchange for their production of it. After a limited time, the product of their work becomes the public’s to use as it wants. This is Communism at the core of our Constitution’s protection of intellectual property. This “property” is not property in the ordinary sense of that term.
And this is true for reasons better than tradition as well. Economists have long understood that granting property rights over information is dangerous (to say the least)[33] . This is not because of leftist leanings among economists; it is because economists are consequentialists, and their objective in granting any property right is simply to facilitate production. But there is no way to know, in principle, whether increasing or decreasing the rights granted under intellectual property law will lead to an increase in the production of intellectual property. The reasons are complex, but the point is not: Increasing intellectual property’s protection is not guaranteed to “promote the progress of science and useful arts” — indeed, often doing so will stifle it.
The balance that intellectual property law traditionally strikes is between the protections granted the author and the public use or access granted everyone else. The aim is to give the author sufficient incentive to produce. Built into the law of intellectual property are limits on the power of the author to control use of the ideas she has created[34].
A classic example of these limits and of this public use dimension is the right of “fair use.” Fair use is the right to use copyrighted material, regardless of the wishes of the owner of that material. A copyright gives the owner certain rights; fair use is a limitation on those rights. It gives you the right to criticize this book, cut sections from it, and reproduce them in an article attacking me. In these ways and in others, you have the right to use this book independent of how I say it should be used.
Fair use does not necessarily work against the author’s interest — or more accurately, fair use does not necessarily work against the interests of authors as a class. When fair use protects the right of reviewers to criticize books without the permission of authors, then more critics criticize. And the more criticism there is, the better the information is about what books people should buy. The better the information is about what to buy, the more people will buy it. Authors as a whole benefit from the system of fair use, even if particular authors do not.
The law of copyright is filled with such rules. Another is the “first sale” doctrine. If you buy this book, you can sell it to someone else free of any constraint I might impose on you[35]. This doctrine differs from the tradition in, for example, Europe, where there are “moral rights” that give the creator power over subsequent use[36]. I’ve already mentioned another example — limited term. The creator cannot extend the term for which the law will provide protection (even if Congress can); that is fixed by the statute and runs out when the statute runs out.
Taken together, these rules give the creator significant — but not perfect — control over the use of what he produces. They give the public some access, but not complete access. They are balanced differently from the balance the law strikes for ordinary property — by design. They are constitutionally structured to help build an intellectual and cultural commons.
The law strikes this balance. It is not a balance that would exist in nature. Without the law, and before cyberspace, authors would have very little protection; with the law, they have significant, but not perfect, protection. The law gives authors something they otherwise would not have in exchange for limits on their rights, secured to benefit the intellectual commons as a whole.
Private Substitutes for Public Law
So copyright law strikes a balance between control and access. What about that balance when code is the law? 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 allow individuals to browse for free, as a bookstore does, but she might not. Whether she grants this right depends on whether it profits her. Fair use becomes contingent upon private gain. More importantly, it becomes contingent upon the private gain of authors individually rather than authors as a class.
Thus, as privatized law, trusted systems regulate in the same domain that copyright law regulates. But unlike copyright law, they do not guarantee the same limits on copyright’s protection. Trusted systems give the producer maximum control over the uses of copyrighted work — admittedly at a cheaper cost, thus perhaps permitting many more authors to publish. But they give authors almost perfect control in an area in which the law did not. Code thus displaces the balance that copyright law strikes by displacing the limits the law imposes. As Daniel Benloliel puts it,
Decentralized content providers are . . . privatizing the enforcement authority with strict technological standards, under which individuals would be banned from access and use of particular digital content in a way that might override legitimate fair use[37].
So far my description simply sets law against code: the law of copyright either complemented by, or in conflict with, private code. You may not yet be convinced that we should consider this a conflict, because it has always been the case that one can exercise more control over a copyrighted work tha n the law gives you the right to exercise over the copyright. For example, if you own a painting that is in the public domain, there’s no requirement for you to let anyone see it. You could lock it in your bedroom and never let anyone see it ever. In a sense, you’ve thus deprived the world of the value of this painting being in the “public domain.” But no one has ever thought that this interaction between the law of trespass and copyright has created any important conflict. So why should anyone be troubled if copyright owners use code to lock up their content beyond the balance the law of copyright strikes?
If this is where you’re stuck, then let me add one more part to the story. As I mentioned above, the DMCA contains an anti-circumvention provision. That part of the law forbids the circumvention of some technical protection measures; it forbids the development of tools to circumvent technical protection as well. Most important, it forbids these circumventions regardless of the purpose of the circumvention. Thus, if the underlying use you would make of a copyrighted work — if you could get access to it — is a “fair use”, the DMCA still makes it an
