offense to circumvent technical protections to get access to it. Thus one part of the law of copyright grants “fair use”, while another part of copyright removes at least some fair use liberty where the fair use has been removed by technical means[38].
But so what, the skeptic will ask. What the law gives, the law can take away, can’t it?
No it can’t, and that’s the point. As the Supreme Court has indicated, copyright law is consistent with the First Amendment only because of certain important limitations built into the law. Removing those limitations would then raise important First Amendment questions. Thus, when the law acts with code to remove the law’s protection for fair use, this should raise an important question — at least for those concerned about maintaining the balance that copyright law strikes.
But maybe this conflict is just temporary. Couldn’t the code be changed to protect fair use?
The answer to that hopeful (and again, hopeful because my main point is about whether incentives to protect fair use exist) question is no, not directly. Fair use inherently requires a judgment about purpose, or intent. That judgment is beyond the ken of even the best computers. Indirectly, however, fair use could be protected. A system that allowed an individual to unlock the trusted system if he claimed the use was fair (perhaps marking the used work with a tag to make it possible to trace the use back to the user) could protect fair use. Or as Stefik describes, a system that granted users a “fair use license”, allowing them to unlock the content and use insurance backing the license to pay for any misuse, might also protect fair use [39]. But these alternatives again rely on structures beyond code. With the code itself, there is no way adequately to police 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 through contract law to rewrite the balance that copyright law creates.
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. Zeidenberg. 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. In some cases, courts have expressly refused to follow a contract term precisely because it is inconsistent with a copyright law value[40]. The ultimate power of a contract depends upon the 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[41]. As Stefik writes, trusted systems “differ from an ordinary contract in critical ways.”
In an ordinary contract, compliance is not automatic; it is the responsibility of the agreeing parties. There may be provisions for monitoring and checking on compliance, but the actual responsibility for acting in accordance with the terms falls on the parties. In addition, enforcement of the contract is ultimately the province of the courts[42].
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 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?
I don’t mean to enter the extremely contentious debate about whether this change in control is good or appropriate. I’ve said too much about that elsewhere[43]. For our purposes here, the point is simply to recognize a significant change. Code now makes possible increasingly perfect control over how culture is spread. Regulations have “been fairly consistent . . . on the side of expanding the power of the owners to control the use of their products.[44]” And these regulations invite a demand for perfect control over how culture is spread.
The rise of contracts qualifying copyright law and the rise of code qualifying copyright law raise a question that the law of copyright has 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 was not possible. The balance struck by the law was the best that authors could get. But now, code gives authors a better deal. The question for legal policy is whether this better deal makes public sense.
Here we confront the first latent ambiguity within the law of copyright. There are those who would say that copyright law already decides this question — whether against code-based control, or for it. But in my view, this is a choice the law has yet to make. I have my own views about how the law should decide the question. But what technology has done is force us to see a choice that was not made before. See the choice, and then make it.
Put most directly: There has always been a set of uses of copyrighted work that was unregulated by the law of copyright. Even within the boundary of uses that were regulated by the law of copyright, “fair use” kept some uses free. The core question is why? Were these transactions left free because it was too costly to meter them? Or were these transactions left free because keeping them free was an important public value tied to copyright?
This is a question the law never had to resolve, though there is support for both views[45]. Now the technology forces us to resolve it. The question, then, is how.
A nice parallel to this problem exists in one part of constitutional law. The framers gave Congress the power to regulate interstate commerce and commerce that affects interstate commerce[46]. At the founding, that was a lot of commerce, but because of the inefficiencies of the market, not all of it. Thus, the states had a domain of commerce that they alone could regulate[47].
Over time, however, the scope of interstate commerce has changed so that much less commerce is now within the exclusive domain of the states. This change has produced two sorts of responses. One is to find other ways to give states domains of exclusive regulatory authority. The justification for this response is the claim that these changes in interstate commerce are destroying the framers’ vision about state power.
The other response is to concede the increasing scope of federal authority, but to deny that it is inconsistent with the framing balance[48]. Certainly, at the founding, some commerce was not interstate and did not affect interstate commerce. But that does not mean that the framers intended that there must always be such a space. They tied the scope of federal power to a moving
