This is a substantial concern with any bounty system. But it too can be dealt with through a careful reckoning of incentives. First, and obviously, the regulation should make such fraud punishable by death. (Ok, not death, but by a significant punishment). And second, any person or company charged with a violation of this spam statute could assert, under oath, that it did not hire or direct any entity to send spam on its behalf. If such an assertion is made, then the company would not be liable for any penalty. But the assertion would include a very substantial penalty if it is proven false — a penalty that would include forfeiture of both personal and corporate assets. A company signing such an oath once would likely be given the benefit of the doubt. But a company or individual signing such an oath more than once would be a target for investigation by the government. And by this stage, the exposure that the spammers would be facing would be enough to make spamming a business that no longer pays.
Here again, then, the solution is a mixed modality strategy. A LAW creates the incentive for a certain change in the CODE of spam (it now comes labeled). That law is enforced through a complex set of MARKET and NORM-based incentives — both the incentive to be a bounty hunter, which is both financial and normative (people really think spammers are acting badly), as well as the incentive to produce bounty credit cards. If done right, the mix of these modalities would change the incentives spammers face. And, if done right, the change could be enough to drive most spammers into different businesses.
Of course there are limits to this strategy. It won’t work well with foreign sites. Nor with spammers who have ideological (or pathological) interests. But these spammers could then be the target of the code-based solutions that I described at the start. Once the vast majority of commercially rational spam is eliminated, the outside cases can be dealt with more directly.
This has been a long section, but it makes a couple important points. The first is a point about perspective: to say whether a regulation “abridges the freedom of speech, or of the press” we need a baseline for comparison. The regulations I describe in this section are designed to restore the effective regulation of real space. In that sense, in my view, they don’t “abridge” speech.
Second, these examples show how doing nothing can be worse for free-speech values than regulating speech. The consequence of no legal regulation to channel porn is an explosion of bad code regulation to deal with porn. The consequence of no effective legal regulation to deal with spam is an explosion of bad code that has broken e-mail. No law, in other words, sometimes produces bad code. Polk Wagner makes the same point: “law and software together define the regulatory condition. Less law does not necessarily mean more freedom[68]”. As code and law are both regulators (even if different sorts of regulators) we should be avoiding bad regulation of whatever sort.
Third, these examples evince the mixed modality strategy that regulating cyberspace always is. There is no silver bullet — whether East Coast code or West Coast code. There is instead a mix of techniques — modalities that must be balanced to achieve a particular regulatory end. That mix must reckon the interaction among regulators. The question, as Polk Wagner describes it, is for an equilibrium. But the law has an important role in tweaking that mix to assure the balance that advances a particular policy.
Here, by regulating smartly, we could avoid the destructive code-based regulation that would fill the regulatory gap. That would, in turn, advance free speech interests.
The Regulations of Speech: Free Culture
The third context in which to consider the special relevance of cyberspace to free speech follows directly from Chapter 10. As I describe there, the interaction between the architecture of copyright law and the architecture of digital networks produces an explosion of creativity within reach of copyright never contemplated by any legislature.
The elements in that change are simple. Copyright law regulates, at a minimum, “copies.” Digital networks function by making “copies”: There’s no way to use a work in a digital environment without making a copy. Thus, every single use of creative work in a digital environment triggers, in theory at least, copyright.
This is a radical change from life in real space. In real space, there are any number of ways to “use” a creative work without triggering the law of copyright. When you retell a joke to friends, the law of copyright is not invoked — no “copy” is made, and to friends, no public performance occurs. When you loan a friend your book, the law of copyright is not triggered. When you read a book, the law of copyright would never take notice. Practically every single ordinary use of culture in real space is free of the regulation of copyright. Copyright targets abnormal uses — such as “publishing” or public performances.
The gap between normal and abnormal uses began to close as the technologies for “copying” were democratized. Xerox created the first blip; cassette tape recorders were close behind. But even these technologies were the exception, never the rule. They raised copyright questions, but they didn’t inject copyright into the center of ordinary life.
Digital technologies have. As more and more of ordinary life moves onto the Internet, more and more of ordinary life is subject to copyright. The functional equivalent to activities from real space that were essentially unregulated is now subject to copyright’s rule in cyberspace. Creativity activity that never needed to grapple with copyright regulation must now, to be legal, clear a whole host of hurdles, some of which, because of the insanely inefficient property system that copyright is, are technically impossible. A significant portion of creative activity has now moved from a free culture to a permission culture. And the question for the values of free speech is whether that expanded regulation should be allowed to occur unchecked.
Again, I have my own (overly strong) views about the matter[69]. I continue to be astonished that a Court so keen to avoid “raising the costs of being a producer of sexual materials troubling to the majority” [70] is apparently oblivious to the way copyright law raises the costs of being a producer of creative and critical speech.
But for our purposes here, we should simply note once again a latent ambiguity in our constitutional tradition. As the Supreme Court has held, the First Amendment imposes important limitations on the scope of copyright. Among those are at least the requirements that copyright not regulate “ideas”, and that copyright be subject to “fair use.”
But these “traditional First Amendment safeguards” were developed in a context in which copyright was the exception, not the rule. We don’t yet have a tradition in which every single use of creative work is subject to copyright’s reach. Digital technologies have produced that world. But most of the rest of the world has not yet woken up to it.
So what should First Amendment values be in this world? One view is that the First Amendment should have no role in this world — beyond the minimal protections of the “idea/expression” distinction and the requirement of “fair use.” In this view, the scope of Congress’s regulation of creative activities is, subject to these minimal conditions, plenary. Any creative act reduced to a tangible form could be subject to the monopoly right of copyright. And as every creative act in digital context is reduced to a tangible form, this view means that everything
