1
Imagine that a bustling group of colonists has just moved into a
new area, a huge, unexplored plain. (Again, assume the native
inhabitants have conveniently disappeared.) Some of the
colonists want to farm just as they always did in the old
country. "Good fences make good neighbors" is their motto.
Others, inspired by the wide-open spaces around them, declare
that this new land needs new ways. They want to let their cattle
roam as they will; their slogan is "Protect the open range." In
practice, the eventual result is a mixture of the two regimes.
Fields under cultivation can be walled off but there is a right
of passage through the farmers' lands for all who want it, so
long as no damage is done. This means travelers do not need to
make costly and inefficient detours around each farm. In the
long run, these "public roads" actually increase the value of
the private property through which they pass. They also let the
ranchers move their cattle around from one area of pasture to
another. The ranchers become strong proponents of "public, open
highways" (though some people muse darkly that they do very well
out of that rule). Still, most people want open highways; the
system seems to work pretty well, in fact.
2
Two new technologies are introduced. First, the automobile is
developed. Now thieves can drive through the farmers' fields,
stop quickly to grab some corn or a lettuce, and be back on the
highway before they can be caught. Of course, the farmers' costs
have also fallen dramatically; now they have tractors to work
their fields and trucks to take their products to distant
markets. The farmers do not dwell on the benefits of the new
technology, however. Understandably, they focus more on the
profits they could reap if they could get all the advantages of
the technology and none of its costs. They demand new legal
protections aimed at producing that result. "What's good for
agriculture is good for the nation," they say. But now comes the
second technological shock--the development of barbed wire. The
cost of erecting impassable barriers falls dramatically. The
farmers begin to see the possibility of enclosing all of their
land, roads and fields alike. This will help them protect their
crops from pilfering, but it will also allow them to charge
people for opening the gates in their fences--even the gates on
public roads. That is a nice extra revenue stream which will,
the farmers say, "help encourage agriculture." After all, more
fences mean more money for farmers, and more money for farmers
means they can invest in new methods of farming, which will mean
everyone is better off, right?
3
What is to be done? Assume that each side presents its case to
the legislature. There are three obvious possibilities:
4
First, the legislature can simply tell each side to work it out
amongst themselves. The law will continue to forbid trespass,
but we are neither going to make it a crime to put up a barbed
wire fence if it blocks legitimate public rights of way nor to
make it a crime to cut a barbed wire fence, unless the fence
cutter is also a trespasser. The farmers can attempt to enclose
land by putting barbed wire around it. Ranchers and drivers can
legally cut those fences when they are blocking public rights of
way. Trespass remains trespass, nothing more.
5
Second, the legislature could heed the ranchers' fears that
barbed wire will permit the farmers not only to protect their
own land, but to rob the public of its existing rights of way,
turning open highways into toll roads. (The ranchers, of course,
are more concerned with the rights of cattle than people, but
most drivers agree with them.) As a result, the state could
forbid the erection of a barbed wire fence where it might block
a public right of way--classing it as a kind of theft, perhaps.
6
Third, the legislature could take the farmers' side. Theorizing
that this new automobile technology presents "a terrible threat
to agriculture, because of rampant crop piracy," the state could
go beyond the existing law of trespass and make it a crime to
cut barbed wire fences wherever you find them (even if the
fences are enclosing public lands as well as private, or
blocking public roads). To back up its command, it could get
into the technology regulation business--making the manufacture
or possession of wire cutters illegal.
7
The state picks option three. Wire cutting becomes a crime, wire
cutters are classed with lock picks and other "criminals'
tools," and the people who make wire cutters are told their
business is illegal. A storm of protest arises in the rural
driving community. The wire cutter manufacturers claim that
their products have lots of legitimate uses. All to no avail:
the farmers press on. They have two new demands. Cars should be
fitted with mandatory radio beacons and highways put under
constant state surveillance in order to deter crop theft. In
addition, car trunks should be redesigned so they can hold
less--just in case the owner plans to load them up with purloined
produce. Civil libertarians unite with car manufacturers to
attack the plan. The farmers declare that the car manufacturers
are only interested in making money from potential thieves and
that the civil libertarians are Nervous Nellies: no one has
anything to fear except the criminals. "What's good for
agriculture is good for the nation," they announce again. As the
barbed wire gates swing shut across the highways of the region,
the legislature heads back into session.
8
BETWEEN PARANOIA
AND REALITY: THE DMCA
9
I have argued that confusing intellectual property with physical
property is dangerous. I stand by that argument. Yet analogies
to physical property are powerful. It is inevitable that we
attempt to explain new phenomena by comparing them to material
with which we are more familiar. While the content companies'
tales of "theft" and "piracy" are the most prevalent, they are
by no means the only such analogy one can make. In this chapter
I try to prove that point.
10
The Farmers' Tale is my allegorical attempt to explain the
struggle over the single most controversial piece of
intellectual property legislation in recent years, the Digital
Millennium Copyright Act, or DMCA.1 The DMCA did many things,
but for our purposes its crucial provisions are those forbidding
the "circumvention of copyright protection systems," the
technological measures that copyright holders can use to deny
access to their works or control our behavior once we get
access. These measures include encryption, controls on how many
times a file can be copied, password protection, and so on.
Copyright protection systems are, in other words, the digital
equivalent of barbed wire, used to add an additional layer of
"physical" protection to the property owner's existing legal
protection. But, unlike barbed wire, they can also control what
we do once we get access to the property.
11
The rules that forbid circumvention of these systems are
logically, if not elegantly, referred to as the
anticircumvention provisions. They are to be found in Section
1201 of the Copyright Act, an ungainly and lumpily written
portion of the law that was inserted in 1998 as part of the
complex set of amendments collectively referred to as the DMCA.
I will explain the significance of these rules in a moment. My
hope is that the analogy to the Farmers' Tale will make them a
little easier to understand--at least for those of you for whom
talk of digital rights management, anticircumvention provisions,
and network effects is not second nature.
12
Notice the differences between this allegory and the "Internet
Threat" story line I described in the last chapter. There are
two sets of bad guys in the Farmers' Tale. The greedy thieves
(who are still thieves in this story--not heroes) and the greedy
farmers who use a genuine if indefinite "threat" posed by a new
technology to mask a power grab. The Internet Threat is the
story of an industry devastated by piracy, in desperate need of
help from the state to protect its legitimate property
interests. By contrast, the Farmers' Tale is the story of a
self-interested attempt not only to protect property but to cut
off recognized rights of public access in a way that will
actually make the whole society worse off. The legitimate role
of the state in protecting private property has been stretched
into an attempt to regulate technology so as to pick winners in
the marketplace, enriching the farmers at the expense of
consumers and other businesses. In the long run this will not be
good for business as a whole. A patchwork of private toll roads
is an economic nightmare.
13
That is not the most worrying part of the story: the farmers'
proposals are moving in the direction of regulating still more
technology--the mandatory radio beacons and constantly monitored
roads conjure up a police state--and all to protect a bunch of
hysterical vegetable growers whose political clout far outweighs
their actual economic importance.
14
Both the Internet Threat and the Farmers' Tale are, of course,
ways to understand what is currently going on in the
intellectual property wars. In the digital realm, the part of
the farmers is played by the content companies, the recording
industry associations, the movie and software trade groups.
Pointing to the threat of digital piracy, they demanded and
received extra legal protection for their copyrighted content.
Unlike earlier expansions--longer copyright terms, more stringent
penalties, the shrinking of exceptions and limitations,
expansions in copyrightable subject matter--this was not a
protection of the work itself; it was a protection of the
digital fences wrapped around it, and a regulation of the
technology that might threaten those fences.
15
What is the significance of this? The digital revolution makes
it easier to copy copyrighted content. It also makes it easier
to protect that content, and to do so in a more granular and
precisely calibrated way. Imagine being able to sell a paperback
book that could only be read by the original purchaser or a song
that could only be listened to by a particular person in a
particular room. Digital rights management technology makes it a
lot easier to do these things. Suddenly the copyright owners
have considerable physical control over their songs, e-books,
and software, even after they have sold them. It is as if the
recording industry or the publishers had a representative in
your living room. They can use that control not merely to
prevent illicit copying but to control and limit usage in ways
that go far beyond their exclusive rights under copyright. All
of this happens without the law or the state doing anything.
Like barbed wire, this is a technological protection measure.
16
Like the farmers, the content companies were not content with
their barbed wire alone. They wanted legally protected barbed
wire in addition to their existing legal rights under copyright.
Under the Digital Millennium Copyright Act, it became illegal to
circumvent a technical protection measure such as encryption--the
digital barbed wire behind which content companies secrete their
work--even if what you did with the content when you got past the
barbed wire was a fair use; excerpting a fragment of a film for
a school presentation, for example, or making a copy of an
encrypted audio file for personal use in another device. In
other words, by using digital barbed wire, the content companies
could prevent citizens from making the "fair uses" the copyright
law allowed. This undermines some of the limitations on their
exclusive rights that the Copyright Act explicitly carves out in