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Sadly, Judge Kaplan spent much less time on the other First Amendment argument against the DMCA--that it is unconst.i.tutional because it gives copyright holders a new intellectual property ent.i.tlement, created by Congress under the Copyright Clause, a legal power to deprive users of a const.i.tutionally required limitation on copyright's exclusive rights. In my view, he also framed the argument wrongly when he did discuss it. To be fair, these problems can partly be traced to the fact that the defendants spent most of their energy on the argument that code was expression, paying less attention to everything else. As Judge Kaplan explained it, the claim was that the DMCA might have the effect of restricting an alleged fair use right of access to copyrighted material. Predictably enough, he responded that there was no such right of access. Copyright holders could always lock up the book or restrict entrance to the gallery. In any event, while fair use of DVDs might be curtailed, he argued that most movies are also available on videotape. Even if the film were only available on DVD, the prospective fair user could write down the words and quote them, or record the sound from the screen. Finally, Judge Kaplan pointed out that even if the DMCA might allow a significant erosion of fair use to develop over time, such a problem was not present here. Those making First Amendment claims are sometimes allowed by courts to show that, even if the law as it applied to them were const.i.tutional, it would restrict the First Amendment rights of others. Judge Kaplan declined to apply that doctrine here. In effect, he said "come back when there is a problem."

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On appeal, the case was decided by a panel led by Judge Jon Newman. Here the fair use argument received more attention but the result was the same: "Come back when there is a problem."

Significantly, both courts pointed out another concern. The DMCA could effectively make copyright perpetual because even though the copyright term would expire, the legally protected encryption would continue, and tools such as DeCSS, which would have allowed access to the public domain work, would be illegal.13 This is a major issue because it appears to violate both the First Amendment and the Copyright Clause's requirement of a limited time. The defendants did not spend adequate time on this argument, however, and the courts again left it for later consideration.

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The court of appeals saw the defendants' argument in just the same way as Judge Kaplan had seen it: a claim that there was a fair use right of actual access to the finest version of every work in every medium, on which the DMCA put a practical limitation. Such a claim was easy to dismiss. There was no such right of guaranteed practical access. Copyright owners could restrict the practical ability to exercise fair use in many ways without the Const.i.tution being involved. In addition, in a world where copyrighted content is frequently available in both a.n.a.log and digital form, the actual effects of the DMCA might be trivial and were, in any event, const.i.tutionally acceptable.

Judge Newman repeated Judge Kaplan's point that one could always make fair use of the work in a way the DMCA did not reach, such as by videotaping a picture of the screen.

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The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconst.i.tutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no const.i.tutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid const.i.tutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.

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Once the issue is framed this way, the case has been lost. I would argue that there are three baseline errors here: a focus on "affirmative rights of access" as opposed to limits on Congress's power in handing out exclusive rights over expression without their const.i.tutionally necessary limitations, a focus on practical effects of the provisions rather than on formal const.i.tutional limitations on the copyright system over all cla.s.ses of works, and a confusion between intellectual property rights and physical property rights that goes to the heart of the Jefferson Warning discussed in Chapter 2. The question is not whether users have a const.i.tutionally protected right of practical access to a preferred version of a work. The question is whether it violates the First Amendment for Congress to give to copyright holders an intellectual property right to exempt their copyrighted works in some formats from fair use and other provisions that are necessary for copyright law in general to be const.i.tutional.

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Remember my earlier example. What if Congress amended Section 1201 to say "Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circ.u.mvent the red dot even if, but for the dot, the use would have been fair"? This statute, I think, is clearly unconst.i.tutional. It would be no answer to say that some owners will not use the red dot, and even for those that do, there will be older, dotless versions still available. It is irrelevant that I might be able to copy down the crucial lines of the book over your shoulder while you read it and thus claim that I, personally, had not circ.u.mvented the dot. The unconst.i.tutionality of the statute does not turn on whether the dots might fall off because of bad adhesive, or whether there are many secondhand bookstores in the area, in which undotted volumes can be found. Even if the red dot rule were only to be applied to hardback books, or graphic novels, or ca.s.sette tapes, it would still be unconst.i.tutional. Nor do we have to wait until the entire marketplace is dominated by red-dotted products before considering the issue. It is no answer to say that even before the red dot rule, copyright holders could always have hidden their works, or locked them in safes, or even negotiated individual contracts with the purchasers that have the effect of limiting fair use. That way of framing it just misunderstands the issue on a fundamental level. The claim is not about the happenstance of practical access or the way that a copyright holder can use physical control of an object or existing tangible property rights to undercut fair use.

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The point is that Congress violates the First Amendment when, with respect to any work, it gives me an intellectual property right to prohibit copying and distribution of an expressive work sold in the marketplace and an additional legal power to opt out of the limitations contained in Section 107 over that work. The bundle of rights conveyed by the DMCA does exactly that. It is not the DMCA alone that we must a.n.a.lyze. The question is whether Congress can give the exclusive rights contained in Section 106 of the Copyright Act over a particular cla.s.s of works (say digital works), if it also gives a new right to prohibit citizens from gaining access to those works for the purposes of making a fair use. If Judge Kaplan and Judge Newman are correct, then the DMCA gives an entirely new intellectual property right (technically, a legal power) to the copyright holders to do exactly that. To put it the other way around, the DMCA subtracts from the citizen's bundle of ent.i.tlements under federal copyright law, the right (technically, lawyers would call it a privilege) to gain access to a work legally in his possession for the purpose of making a fair use. It is that rule change that is unconst.i.tutional, I would argue, and the way Judge Kaplan and Judge Newman frame that issue makes them miss the point.

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Framing is important. The confusions that I have talked about in this book all make an appearance. It starts with the whole controversy being framed by the Internet Threat story line from Chapter 4. Because Judge Kaplan is convinced that every citizen is now a potential infringer, a potentially infectious virus carrier, he is ill disposed to listen to claims about fair use.

Civil liberties claims do not do very well in epidemics. It is only right for him to defer to Congress's perception of the problem and the solution, of course. But he buys so deeply into the magnitude of the threat, the extent of the potential piracy pandemic, that it is very hard for him to take seriously the idea that even here there is a legitimate const.i.tutional fair use claim.

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The Sony Axiom from Chapter 4 is also ignored, or at least undervalued. As I pointed out there, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. The DMCA continues that logic; its drafters concluded that the right to get access to digital works for purposes of making a fair use must be taken from the bundle of rights possessed by citizens, while the right to enjoin both access and the technologies of access is added to those of copyright holders. Never mind the correctness of such a conclusion as a matter of policy. Are there const.i.tutional limitations on Congress taking such an action? Kaplan and Newman in effect tell us, "not yet."

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More important than the perception of the threat is the understanding of what intellectual property is all about. In Chapter 2, Jefferson warned us that intellectual property rights are not like physical property rights. In a.n.a.lyzing the DMCA, where do we turn for a.n.a.logies? To physical property, violence, and theft. The cases a.n.a.lyzing the DMCA are full of a.n.a.logies to trespa.s.s, to breaking and entering, to burglars' tools, and to safecrackers. Private property carries a lot of baggage with it, but we know it well--it is the place we naturally turn for insight. Even I, in order to point out some of the difficulties with those a.n.a.logies, had to turn to farmers and barbed wire and public rights-of-way along highways. There is nothing wrong with a.n.a.logies. They help us understand things that are new by comparing them to things we think we understand better.

a.n.a.logies are only bad when they ignore the key difference between the two things being a.n.a.lyzed. That is what happens here.

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Jefferson reminded us that intellectual property rights are clearly artifacts of state creation, monopolies whose internal limitations in scope, duration, and so on are just as important as the rights themselves. Jefferson doubts whether even property rights over land can be understood as natural and absolute--copyrights and patents, which cover subject matter that can be infinitely reproduced without diminishing its substance, clearly cannot. They frequently involve a claim to control purchasers' behavior with respect to some aspect of an artifact after it has been sold to them in the marketplace, making simpleminded a.n.a.logies to "breaking and entering"

inappropriate--the extent of the property in question is precisely the issue in dispute. (When Johansen was tried in Norway under the national computer crime law, the court laconically observed that he had bought the DVDs, and one cannot break into one's own property--effectively turning the a.n.a.logy on its head.) Jefferson starts from the baseline that monopoly is the exception and freedom is the rule--any limitations on that freedom have to be justified. That is why he always discusses the right and the limitations on the right as an inseparable pair. One cannot discuss them in isolation.

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Kaplan and Newman are fine, thoughtful judges. They do not altogether ignore those points. But look how the a.n.a.lysis is set up. At several points in the discussion, there seems to be the a.s.sumption that copyright owners have ent.i.tlements to total control as of right and that fair use is a mere lucky loophole which, because it can be negated by the happenstance of whether one can get physical access, can hardly have major First Amendment status. They keep pointing out that physical control and tangible property rights frequently allow copyright holders to make fair use impracticable. "And so what?" Jefferson might have responded. This is a cla.s.sic non sequitur. The question is whether the Congress has the power to add a new right of access- denial to the intellectual property monopoly it is constructing, undermining--as to some works and some fair uses--the balance that the law sets up. The citizen is not pleading for a new right of access, trumping all physical restraint and tangible property rights. The citizen is claiming that Congress has no power to give exclusive rights to restrain copying of digital content while simultaneously taking away the citizen's existing right to get access to that content for the purposes of fair use--at least in those cases where access is physically possible and violates no other property right, real or intellectual.

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The Const.i.tution does not require the United States to break into President Nixon's desk to get me his tapes, buy me a tape recorder, or give me a right to 18.5 minutes on the broadcast airwaves to play them. But if I can get access to the tapes legally, it does forbid the government from giving President Nixon the power to put a red dot on those tapes and thus claim an intellectual property right to stop me playing them on TV or digitizing them to make the sounds clearer. The restraints imposed by physical happenstance and tangible property rights are different from those imposed by copyright--a congressionally created monopoly over expression. We cannot a.s.sume because one is const.i.tutionally acceptable that the others are too.

Jefferson understood that, and his a.n.a.lysis can help us even in a const.i.tutional conflict over a technology he could hardly have dreamt of. (Though perhaps with Jefferson, this is a bad bet.) 86

The same point comes up in a different way when the court disconnects the fair use discussion from the exclusive rights discussion. The question is not "Do I have a const.i.tutionally protected right of physical access to a preferred version of a movie, so as to make my task easy?" That gets the court caught up in questions of when a majority of movies will only be available on DVD, or how poor a subst.i.tute the a.n.a.log version would be, or how many fair uses will require actually cutting a digital fence. But all of these inquiries miss the point. The question is "Can Congress hand out the exclusive rights of copyright over digital works if it does not accompany those rights with the suite of limitations that the court has repeatedly said "saves" copyright from violating the First Amendment?" The proportion of digital works to the total number of works produced in other formats is irrelevant. As to these works, the rule is unconst.i.tutional. But what about the number or proportion of types of fair uses affected? That is more relevant but still not dispositive in the way Kaplan and Newman imagined. True, not every trivial statutory modification of fair use makes copyright unconst.i.tutional. But this is not a trivial modification: over an entire cla.s.s of works, copyright owners are given a legal power to deprive users of their privilege to gain otherwise lawful access for the purposes of fair use. If you give the digital filmmaker the exclusive rights of copyright but forbid the film professor from going through the otherwise lawful process of parodying or quoting, that rule is unconst.i.tutional, no matter how many other fair uses are unaffected. If the copyright law were amended to forbid journalists playing, on a Friday, excerpts of legally acquired red-dotted tapes made by presidents whose last name begins with N, it would still be unconst.i.tutional.

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The legal implementation of this conclusion would be simple. It would be unconst.i.tutional to punish an individual for gaining access in order to make a fair use. However, if they cut down the digital fence to make illicit copies, both the cutting and the copying would be illegal. But what about the prohibition of trafficking in digital wire cutters, technologies such as DeCSS?

There the const.i.tutional question is harder. I would argue that the First Amendment requires an interpretation of the ant.i.trafficking provisions that comes closer to the ruling in the Sony case. If Mr. Johansen did indeed make DeCSS to play DVDs on his Linux computer, and if that were indeed a substantial noninfringing use, then it cannot be illegal for him to develop the technology. But I accept that this is a harder line to draw const.i.tutionally. About my first conclusion, though, I think the argument is both strong and clear.

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Ironically, there is some support for my claim and it comes from an even higher, if not uniformly more thoughtful, set of judges than Newman and Kaplan. In the depressing case of Eldred v.

Ashcroft, the Supreme Court upheld retrospective copyright term extensions against a variety of const.i.tutional challenges. (Full disclosure: I a.s.sisted in the preparation of an amicus curiae brief in the case.) One of those challenges was based on the First Amendment. The fairly reasonable claim was that Congress could not retroactively lock up an entire twenty-year swathe of culture that had already been produced. Such a law would be all restraint of expression, performance, republication, adaption, and so on, with no incentive benefits. The Court was unconvinced. But it did say: 89

To the extent such a.s.sertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D.C.

Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." . . . But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.14 90

The DMCA, of course, does exactly this. As to digital works it alters the "traditional contours of copyright protection" in a way that affects "copyright's built-in free speech safeguards."

That is what the Farmers' Tale was all about. Perhaps one day, in a case not involving a Norwegian teenager, a hacker magazine run by a long-haired editor with an Orwellian nom de plume, and an obscure technology that is accused of posing apocalyptic threats to the American film industry, that point will come out more clearly.

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But the issue of speech regulation is only half of the story.

Intellectual property rights over digital technologies affect not only speech, but the framework of compet.i.tion and markets as well, as the next example makes clear.

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The Apple of Forbidden Knowledge: The DMCA and Compet.i.tion 93

You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Californian Zen-chic the company normally projects. "We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws."15 94

What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real's Music Store and play them on their own iPods. That's it. So why all the outrage? It turns out that like the story of DeCSS, this little controversy has a lot to teach us about the landscape of intellectual property disputes, about the mental topography of the high-tech economy. But where the DeCSS case was a war of metaphors around the boundaries of freedom of expression, the iPod story is about ways in which intellectual property marks the limits of compet.i.tion.

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Apple iPods can be used to store all kinds of material, from word processing doc.u.ments to MP3 files. If you want to use these popular digital music players to download copy-protected music, though, you have only one source: Apple's iTunes service, which offers songs at 99 cents a pop in the United States, 79 pence in the United Kingdom. If you try to download copy-protected material from any other service, the iPod will refuse to play it. Or at least, that had been the case until Real managed to make their Harmony service compatible.

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Real's actions meant that consumers had two sources of copy- protected music for their iPods. Presumably all the virtues of compet.i.tion, including improved variety and lowered prices, would follow. The iPod owners would be happy. But Apple was not.

The first lesson of the story is how strangely people use the metaphors of tangible property in new-economy disputes. How exactly had Real "broken into" the iPod? It had not broken into my iPod, which is after all my iPod. If I want to use Real's service to download music to my own device, where's the breaking and entering?

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What Real had done was make the iPod "interoperable" with another format. If Boyle's word processing program can convert Microsoft Word files into Boyle's format, allowing Word users to switch programs, am I "breaking into Word"? Well, Microsoft might think so, but most of us do not. So leaving aside the legal claim for a moment, where is the ethical foul?

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Apple was saying (and apparently believed) that Real had broken into something different from my iPod or your iPod. They had broken into the idea of an iPod. (I imagine a small, platonic white rectangle, presumably imbued with the spirit of Steve Jobs.) Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do.

As an ethical matter, does figuring out how things work, in order to compete with the original manufacturer, count as breaking and entering? In the strange netherworld between hardware and software, device and product, the answer is often a morally heartfelt "yes!" I would stress "morally heartfelt." It is true manufacturers want to make lots of money and would rather not have compet.i.tors. Bob Young of Red Hat claims "every business person wakes up in the morning and says 'how can I become a monopolist?' " Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn't your iPod, it's Apple's iPod.

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Yet even if they believe this, we don't have to agree. In the material world, when a razor manufacturer claims that a generic razor blade maker is "stealing my customers" by making compatible blades, we simply laugh. The "hacking" there consists of looking at the razor and manufacturing a blade that will fit.

To say this is somehow immoral seems laughable. Is the conclusion changed when the information about compatibility is inscribed in binary code and silicon circuits, rather than the molded plastic of a razor cartridge? What if ensuring the "fit"

between the two products is not a matter of making sure the new blades snugly connect to the razor but of making sure the software embedded in my generic product sends the right code to the original product in order to be recognized? Our moral intuitions are a little less confident here. All kinds of bad policy can flourish in that area of moral uncertainty.

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This leads us to the law. Surely Apple's suggestion that the DMCA might prohibit what Real had done is as baseless as their moral argument? In the United States, the answer is "probably,"

at least if the courts continue in the direction they are currently taking, but it is a closer call than you would think.

Internationally, the answer is even less certain. That is where the iPod war provides its second new-economy lesson. Think for a moment about the way that the law shapes the business choices in this dispute.

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In a compet.i.tive market, Apple would choose whether to make the iPod an open platform, able to work with everyone's music service, or to try to keep it closed, hoping to extract more money by using consumers' loyalty to the hardware to drive them to the tied music service. If they attempted to keep it closed, compet.i.tors would try to make compatible products, acting like the manufacturers of generic razor blades or printer cartridges.

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