Two areas of law
Free Online Scholarship (FOS) Newsletter
September 15, 2002
by Peter Suber
In the United States, the two areas of law that I cover most in FOSN --copyright and civil liberties-- have changed fundamentally in the very recent past.  The changes are unusually rapid and unusually radical.  They face dissent, but from unusually few citizens and unusually few courts.  This is an ominous combination.

Both areas of law have a constitutional basis, and both have drifted far from what were formerly their settled constitutional standards.  In both, Congress adopted radical rules that repeal rights of Americans.  In both, the changes are so egregious by constitutional standards that courageous federal courts should overturn practically all of them.  But most courts have so far been acquiescent.  (This is more true on the copyright side; exceptions are starting to appear on the civil liberties side.)

Civil liberties law took a sharp right turn after September 11.  The clear rationale was to detect and avert terrorism.  Whether the threat of terrorism justifies every provision in the new enactments is very far from clear, but at least the danger is clear and the necessity of a response is clear.

The rationale for the copyright revolution is the internet --not infringers or criminals who use the internet, but the internet itself.  There have always been infringers and criminals, but a new and terrifying danger arose when they (and the rest of us) gained access to a worldwide network of universal Turing machines which supports the free distribution of perfect copies to huge numbers of people.

This is the feature of the internet that makes FOS possible.  It is something new under the sun, and we've barely begun to realize its beneficial consequences.  It is already a momentous public good, and has potential for much greater good.  But for the IP industry and Congress, this feature of the net is the equivalent of terrorism, a momentous harm, a disaster justifying the violation of first principles.

In both areas of law, we've had to argue that the response to threat and harm has needlessly jeopardized important public goods.  The argument has failed:  the war on terrorism has trumped civil liberties and the war on infringement has trumped the potential of a free internet.  There are distinctions to be made on both fronts that might permit undiminished vigilance against harm while preserving important public goods against overreaction.  But these are not distinctions that people heed when they are reacting heedlessly to the prospect of momentous harm.

Does this mean that FOS is inseparable from what Congress and the IP industry interpret as economic terrorism?  No, but it might mean that Congress will kill much that is momentously good about the internet in order to kill what it perceives to be momentous harm.  Congress doesn't have to do this.  The distinction to be made here, if Congress is willing to acknowledge it, is between giving away content and selling it.  Scientists and scholars do the former, while publishers and movie studios do the latter.  The rules for one needn't interfere with the other, but that's precisely the nicety lost in the frenzy of self-protection.  (There are other distinctions lost in the same frenzy, distinctions that would protect consumers even in their purchase, use, and sharing of non-FOS content, but that's another story.)

In both areas of law, the argument that we should be careful and recognize certain distinctions is not merely rejected; the argument itself is interpreted as complicity with wrongdoers.  John Ashcroft, speaking for the war on terrorism, and Michael Eisner, speaking for the war on infringement, both make this interpretation, for example.  This is not a response made by careful thinkers who have counter-arguments or even by fair-minded people who lack counter-arguments.  It's the kind of oversimplification that reflects interest or panic.

I understand panic.  But one would like to think that when the goods in jeopardy from reckless regulation are significant, rather than trivial, then even distracted legislators could acknowledge the problem.  Then they could say, "You're right, let's work on this" or at least "You're right, but we can't address your concern until the danger subsides."  But instead, they say, "You're wrong.  What problem?"  On the civil liberties side, the goods in jeopardy are the freedoms guaranteed by the Bill of Rights.  On the copyright side, the goods in jeopardy are all the forms of open access and free sharing that have author consent, including FOS.  Perhaps we must accept that tech-ignorant legislators will be slow to acknowledge the public good of an information commons or a free internet.  (And perhaps not:  this is as much about knowledge and freedom as technology.)  But the Bill of Rights?

* Postscript.  Here's a more specific analogy between terrorism and the internet.  What does a box cutter have in common with tools for circumventing copy protection on digital content?  Both are technologies with many non-criminal uses, but both are now prohibited because of one conspicuous criminal use.  Box cutters are prohibited on airlines.  Circumvention is prohibited even in pursuit of fair-use rights.

I don't propose this analogy seriously.  The similarity is noted, but the differences outweigh the similarity, and I want to highlight the differences.  There are strong legal and policy grounds for thinking that fair use is an important right, while carrying a box cutter on an airplane is not.  Fair use is at least as important as the revenue of copyright holders, while carrying a box cutter on an airplane is not nearly as important as saving lives.  Hence, it's much more justifiable to prohibit box cutters on airlines than to prohibit circumvention for fair use.

The true lesson here is that the DMCA anti-circumvention clause errs on one side when it should err on neither side.  Where the problem is right versus right (fair use versus copyright protection), then we must find a way to honor both or at least balance the two.  By contrast, in airport security the problem is right versus convenience --hence, it's justifiable to err on one side.  From this point of view, we see that in the DMCA the IP industry is doing exactly what infringers are doing, namely, erring on their own side rather than seeking the difficult yet constitutionally required balance.


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