My point is that there is a teleologyâa theory about how intellectual property law must develop historicallyâhidden inside the argument I call the Internet Threat. The argument, which is touted endlessly by the content industriesâand not without reasonâcan be reduced to this: The strength of intellectual property rights must vary inversely with the cost of copying. With high copying costs, one needs weak intellectual property rights if any at all. To deal with the monk-copyist, we need no copyright because physical control of the manuscript is enough. What does it matter if I say I will copy your manuscript, if I must do it by hand? How will this present a threat to you? There is no need to create a legal right to exclude others from copying, no need for a âcopy right.â As copying costs fall, however, the need to exclude increases. To deal with the Gutenberg press, we need the Statute of Anneâthe first copyright statuteâand the long evolution of copyright it ushered in.
But then comes the Internet. To deal with the Internet, we need the Digital Millennium Copyright Act, the No Electronic Theft Act, the Sonny Bono Copyright Term Extension Act, and perhaps even the Collections of Information Antipiracy Act. As copying costs approach zero, intellectual property rights must approach perfect control. We must strengthen the rights, lengthen the term of the rights, increase the penalties, and make noncommercial illicit copying a crime. We must move outside the traditional realm of copyright altogether to regulate the technology around the copyrighted material. Companies are surrounding their digital materials with digital fences. We must make it a violation of the law to cut those digital fences, even if you do so to make a âfair useâ of the material on the other side. We must prohibit the making of things that can be used as fence-cuttersâa prospect that worries researchers on encryption. In the long run, we must get rid of the troublesome anonymity of the Internet, requiring each computer to have an individual ID. We must make click-wrap contracts enforceable, even on third parties, even when you cannot read them before clickingâso that you never actually buy the software, music, movies, and e-books you download, merely âlicenseâ them for a narrowly defined range of uses. We must create interlocking software and hardware systems that monitor and control the material played on those systemsâso that songs can be licensed to particular computers at particular times. Uses that the owners wish to forbid will actually be impossible, whether they are legal or not.
In other words, we must make this technology of the Internet, which was hailed as the great âtechnology of freedom,â into a technology of control and surveillance. The possibility of individuals circulating costless perfect digital copies requires it. It would be facile (if tempting) to say we must remake the Internet to make it safe for Britney Spears. The âInternet Threatâ argument is that we must remake the Net if we want digital creativityâwhether in music or software or movies or e-texts. And since the strength of the property rights varies inversely with the cost of copying, costless copying means that the remade Net must approach perfect control, both in its legal regime and its technical architecture.
James Boyle, The Public Domain: Enclosing the Commons of the Mind, pp. 60-62