target; if the target moves completely to the side of federal power, then that is what we should embrace[49].
In both contexts, the change is the same. We start in a place where balance is given to us by the mix of frictions within a particular regulatory domain: Fair use is a balance given to us because it is too expensive to meter all use; state power over commerce is given to us because not all commerce affects interstate commerce. When new technology disturbs the balance, we must decide whether the original intent was that there be a balance, or that the scope of one side of each balance should faithfully track the index to which it was originally tied. Both contexts, in short, present ambiguity.
Many observers (myself included) have strong feelings one way or the other. We believe this latent ambiguity is not an ambiguity at all. In the context of federal power, we believe either that the states were meant to keep a domain of exclusive authority[50] or that the federal government was to have whatever power affected interstate commerce[51]. In the context of fair use, we believe that either fair use is to be a minimum of public use, guaranteed regardless of the technology [52], or that it is just an efficient compromise in response to an inefficient technology, to be removed as soon as efficiency can be achieved.
But in both cases, this may make the problem too easy. The best answer in both contexts may be that the question was unresolved at the framing: Perhaps no one thought of the matter, and hence there is no answer to the question of what they would have intended if some central presupposition had changed. And if there was no original answer, we must decide the question by our own lights. As Stefik says of trusted systems — and, we might expect, of the implications of trusted systems — “It is a tool never imagined by the creators of copyright law, or by those who believe laws governing intellectual property cannot be enforced.[53]”
The loss of fair use is a consequence of the perfection of trusted systems. Whether you consider it a problem or not depends on your view of the value of fair use. If you consider it a public value that should exist regardless of the technological regime, then the emergence of this perfection should trouble you. From your perspective, there was a value latent in the imperfection of the old system that has now been erased.
But even if you do not think that the loss of fair use is a problem, trusted systems threaten other values latent in the imperfection of the real world. Consider a second.
The Anonymity That Imperfection Allows
I was a student at an English university for a number of years. In the college I attended, there was a “buttery” — a shop inside the college that basically sold alcohol. During the first week I was there I had to buy a large amount of Scotch (a series of unimaginative gifts, as I remember). About a week after I made these purchases, I received a summons from my tutor to come talk with him in his office. When I arrived, the tutor asked me about my purchases. This was, to his mind, an excessive amount of alcohol, and he wanted to know whether I had a good reason for buying it.
Needless to say, I was shocked at the question. Of course, technically, I had made a purchase at the college, and I had not hidden my name when I did so (indeed, I had charged it on my college account), so, formally, I had revealed my alcohol purchases to the college and its agents. Still, it shocked me that this information would be monitored by college authorities and then checked up on. I could see why they did it, and I could see the good that might come from it. It just never would have occurred to me that these data would be used in this way.
If this was an invasion, of course, it was a small one. Later it was easy for me to hide my binges simply by buying from a local store rather than the college buttery. (Though I later learned that the local store rented its space from the college, so who knows what deal they had struck?) And in any case, I was not being punished. The college was just concerned. But the example suggests a more general point: We reveal to the world a certain class of data about ourselves that we ordinarily expect the world not to use. What happens when they use it?
Trusted systems depend on such data — they depend on the ability to know how people use the property that is being protected. To set prices most efficiently, the system ideally should know as much about individuals and their reading habits as possible. It needs to know this data because it needs an efficient way to track use and so to charge for it[54].
But this tracking involves a certain invasion. We live now in a world where we think about what we read in just the way that I thought about what I bought as a student in England — we do not expect that anyone is keeping track. We would be shocked if we learned that the library was keeping tabs on the books that people checked out and then using this data in some monitoring way.
Such tracking, however, is just what trusted systems require. And so the question becomes: Should there be a right against this kind of monitoring? The question is parallel to the question of fair use. In a world where this monitoring could not effectively occur, there was, of course, no such right against it. But now that monitoring can occur, we must ask whether the latent right to read anonymously, given to us before by imperfections in technologies, should be a legally protected right.
Julie Cohen argues that it should, and we can see quite directly how her argument proceeds[55]. Whatever its source, it is a value in this world that we can explore intellectually on our own. It is a value that we can read anonymously, without fear that others will know or watch or change their behavior based on what we read. This is an element of intellectual freedom; it is a part of what makes us as we are[56].
But this element is potentially erased by trusted systems. These systems need to monitor, and this monitoring destroys anonymity. We need to decide whether, and how, to preserve values from today in a context of trusted systems.
This could first be a question of translation: namely, how should changes in technology be accommodated to preserve values from an earlier context in a new context? It is the same question that Brandeis asked about wiretapping[57]. It is the question the Court answers in scores of contexts all the time. It is fundamentally a question about preserving values when contexts change.
In the context of both fair use and reading, Cohen has a consistent answer to this question of translation. She argues that there is a right to resist, or “hack”, trusted systems to the extent that they infringe on traditional fair use. (Others have called this the “Cohen Theorem.”) As for reading, she argues that copyright management schemes must protect a right to read anonymously — that if they monitor, they must be constructed so that they preserve anonymity. The strategy is the same: Cohen identifies a value yielded by an old architecture but now threatened by a new architecture, and then argues in favor of an affirmative right to protect the original value.
But here again we might view the question more ambiguously. I share Cohen’s view, but the argument
