in the digital world could be made subject to copyright.
The opposite view rejects this unlimited scope for copyright. While the monopoly right of copyright makes sense in certain commercial contexts, or more broadly, makes sense where it is necessary to “promote . . . progress”, there is no legitimate reason to burden the vast majority of creative expression with the burdens of copyright law. That a kid making a video book report needs to clear permissions with the author of the book, or that friends making a mashup of a favorite artist can’t do so unless the label has granted them permission, extends the reach of copyright beyond any legitimate purpose.
But between these two views, it is plain that the Framers never made a choice. They were never confronted with the option that copyright could (efficiently) control every single use of a creative work. Any control possible in 1790 would have been radically too burdensome. And while I have my bets about how they would vote, given their strong antipathy to monopolies and the very restrictive IP clause they enacted, that’s nothing more than a bet. If there’s a choice to be made here, it is a choice they didn’t make. It is instead a choice that we must make: Whether the values of free speech restrict this radical increase in the scope of copyright’s regulation.
The Regulators of Speech: Distribution
So far my arguments about architecture have been about architectures in cyberspace. In this final story, I blur the borders a bit. I want to use the architecture of cyberspace to show something important about the regulation of broadcasting.
The Federal Communications Commission regulates speech. If I wanted to broadcast a political speech on FM radio at a frequency of 98.6 MHz in San Francisco, the FCC would have me prosecuted[71]. To speak on 98.6 in San Francisco, I need a license, because to speak using these radio frequencies without a license is a crime. It is a crime despite the fact that the Constitution says, “Congress shall make no law . . . abridging the freedom of speech, or of the press. ” What gives?
The answer rests on a deeply held assumption at the core of our jurisprudence governing broadcasting technologies: Only a fixed amount of “spectrum” is available for broadcasting, and the only way to facilitate broadcasting using that spectrum is to allocate slices of it to users, who are then the ones entitled to use their allocated spectrum within a particular geographical region. Without allocation, there would be chaos, the assumption goes. And chaos would kill broadcasting.
This view first came on the constitutional scene after Congress passed the Radio Act of 1927[72]. In 1926 Secretary of Commerce Herbert Hoover gave up the practice of controlling broadcasting after a number of circuit courts held that he did not have the power to do so. If he did not have the power, he said, then the invisible hand would have to govern. But Hoover was no real friend of the invisible hand. He predicted what would happen when he withdrew federal jurisdiction — chaos — and some suggest his aim was to help bring about just what he predicted. Stations would override other stations, he said; broadcasting would be a mess. When some confusion did arise, Hoover used this to justify new federal regulation[73].
Congress then rode to the rescue by authorizing the FCC to regulate spectrum in a massively invasive way. Only the licensed could speak; what they said would be controlled by their license; they had to speak in the public interest; they had to share their resource with their opponents. In short, Congress said, broadcasting had to be regulated in the same way the Soviet Union regulated wheat[74] . We had no choice. As Justice Felix Frankfurter said in upholding the regime, such sovietism was compelled by the “nature” of radio[75].
From the beginning, however, there have been skeptics of this view. Not skeptics about the idea that spectrum must be regulated, but about the manner by which it is regulated. Is it really necessary to have a central agency allocate what in effect are property rights? As these skeptics argued, the common law had done just fine before the federal government entered. It could also do fine if the government simply made spectrum a kind of tradable property right. Ronald Coase was most famous for pushing for a regime in which spectrum was auctioned rather than licensed[76]. And Coase’s idea caught on — fifty years later. In the United States, the FCC now auctions huge chunks of the broadcasting spectrum. Just this year, it is positioning itself to sell prime real estate spectrum — the part that used to broadcast UHF television.
Now under either scenario — either when the FCC allocates spectrum or when it allocates property rights to spectrum — there is a role for the government. That role is most extensive when the FCC allocates spectrum: Then the FCC must decide who should get what. When spectrum is property, the FCC need only enforce the boundaries that the property right establishes. It is, in a way, a less troubling form of government action than the government deciding who it likes best.
Both forms of government regulation, however, produce a “press” (at least the press that uses spectrum) that is very different from the “press” at the founding. In 1791, the “press” was not the New York Times or the Wall Street Journal. It was not comprised of large organizations of private interests, with millions of readers associated with each organization. Rather, the press was much like the Internet today. The cost of a printing press was low, the readership was slight, the government subsidized its distribution, and anyone (within reason) could become a publisher. An extraordinary number did[77].
Spectrum licenses and spectrum property, however, produce a very different market. The cost of securing either becomes a barrier to entry. It would be like a rule requiring a “newspaper license” in order to publish a newspaper. If that license was expensive, then fewer could publish [78].
Of course, under our First Amendment it would be impossible to imagine the government licensing newspapers (at least if that license was expensive and targeted at the press). That’s because we all have a strong intuition that we want competition to determine which newspapers can operate, not artificial governmental barriers. And we all intuitively know that there’s no need for the government to “rationalize” the newspaper market. People are capable of choosing among competing newspapers without any help from the government.
So what if the same were true about spectrum? Most of us haven’t any clue about how what we call “spectrum” works. The weird sounds and unstable reception of our FM and AM radios make us think some kind of special magic happens between the station and receiver. Without that magic, radio waves would “interfere” with each other. Some special coordination is thought necessary to avoid such “collision” and the inevitable chaos that would result. Radio waves, in this view, are delicate invisible airplanes, which need careful air traffic controllers to make sure disaster doesn’t strike.
But what most of us think we know about radio is wrong. Radio waves aren’t butterflies. They don’t need the protection of the federal bureaucrats to do their work. And as technology that is totally familiar to everyone using the Internet demonstrates, there is in fact very little reason for either spectrum-licenses or spectrum-property. The invisible hand, here, can do all the work.
To get a clue about how, consider two contexts, at least one of which everyone is familiar with. No doubt, radio waves are different from sound waves. But for our purposes here, the following analogy works.
