But if in fact the scope and reach of copyright law have expanded so radically, why hasn’t anyone noticed? Why aren’t copyright holders celebrating?
Simple answer: the expansion of copyright regulation has been offset by an equally radical diminution of its effectiveness. Though in theory an opt-out copyright regime plus digital technology means that everything is presumptively regulated, in practice, digital technologies have meant that this regulation is irrelevant. Digital technologies were designed to enable perfect copies; they were not designed to enable control over these copies. The perfection and freedom of digital technology, including the Internet, have thus led to a Roman feast of copyright infringement. Digital tools make it simple to share data with your 10,000 best friends, so people share data with their 10,000 best friends. The United States may be a nation of drivers who stop at red lights – even deserted red lights, in the middle of the night – but its citizens didn’t even hiccup when slurping down peer-shared creative content, copyright notwithstanding. Whatever the law says, actions speak louder than words. And it is the actions of ordinary users that worries industries that depend on copyright, such as publishing, music, film, and software.
That worry has now prompted a response, and it is this response that in turn worries the free-culture movement. Digital technologies are only technologies: they are made by humans, and they can be remade by humans. If existing digital technologies have so far denied copyright holders control over how the fruits of their creativity get used, then future digital technologies can be remade to restore control to those same copyright holders. In fact, that’s just what is happening.
This restoration of control operates under the name “digital rights management” (DRM). DRM, and the myriad of supporting changes in technology that it will demand (for example, the addition of dedicated “trusted computing” chips to new computers), will build back into the architecture of the digital world the control that the original architecture of the digital world disabled. Nor will it stop there: copyright owners want more. Current DRM proposals reach far beyond the balance of proprietary and free culture in the analog world. If enacted, they would enable a copyright holder (or software creator) to, for example, dictate how many times you can read the e-book you’ve “bought,” or how many times you can move it from one machine to another. Whatever uses you can imagine for a digital device, imagine DRM controlling them. That’s the potential of this technology – a potential that reaches far beyond the limits of predigital copyright regulation.
Now, economists and others of a capitalist bent (see “The Creators Own Ideas,”) will argue that it’s not at all obvious that expanded regulation would be bad. They’ll tell you that in many cases, giving property holders the power to control (or “discriminate”) in uses of their property actually increases the total wealth of society. So we shouldn’t necessarily condemn the tightening of control that DRM will produce in cyberspace, at least if it increases social wealth.
I don’t want to quibble with economists (although I do answer Richard Epstein’s objections to this essay: see “Rebuttal”). My point is less ambitious: it is simply to remark that the prospect of such tight controls would have seemed bizarre even three decades ago, and that we need to think quickly to decide whether we want such controls in the space of culture. When the Internet gives copyright owners perfect control of their content, then, since it’s all automatically copyrighted, every use of it will presumptively require permission. We will then no longer live in a free culture, but in a “by-permission” culture. And these permissions will no longer be policed by courts or the law but rather by software code.
This is the control that the free-culture movement fears. Theoretically, digital technologies give the law the right to regulate culture to an unprecedented extent. DRM will turn that theory into practice. Do we know enough to conclude that the benefits of that practice will outweigh the costs? Do we even know enough to understand the costs?