So how does this difference in harm calibrate with what Congress has done to respond to each of these two problems?
In the last ten years, Congress has passed exactly one bill to deal with the problem of spam — the CAN-SPAM Act of 2003. Over the same period, Congress has passed 24 laws affecting copyright.[8] Not all of these laws, of course, are directly targeted against “piracy”, but they all do aim further to protect copyrighted work in a digital age.
This pattern is not an accident. In a political world that is dominated as ours is, lawmaking happens when special interests benefit. It doesn’t happen when special interests oppose. And in these two instances, the lack of regulation and the plethora of regulation is explained by this point precisely. There have been 24 bills about copyright because rock stars lobby for them. There has been one bill about spam because the direct mailers (and many large companies) testified against them.
Now given this reality, I suggest the libertarian should recognize a third important failure that complements “market” and “government” failure: There is “market failure” when markets can’t be expected to provide goods efficiently; there’s “government failure” when government can’t be expected to solve market failures efficiently; and there’s “libertarian failure” when the push to do nothing will produce not no regulation at all, but regulation by the most powerful of special interests. Or in a slogan: When it’s wrong to push for regulation, only the wrong will get regulation.
I am not a libertarian in the sense Declan is, though I share his skepticism about government. But we can’t translate skepticism into disengagement. We have a host of choices that will affect how the Internet develops and what values it will embed. The attitude that eschews government as part of those choices is not one that will stop government; it will simply stop government from making the right choices.
In my view, governments should intervene, at a minimum, when private action has negative public consequences; when shortsighted actions threaten to cause long-term harm; when failure to intervene undermines significant constitutional values and important individual rights; when a form of life emerges that may threaten values we believe to be fundamental; and when we can see that failing to intervene on the side of right will simply strengthen the interventions on the side of wrong. Such intervention must be limited; it must be engaged with all the awareness about the failures of government that right thinking sorts can muster. But action defending right should not be stopped merely because some goes wrong. When those who believe in the liberty of cyberspace, and the values that liberty promotes, refuse to engage with government about how best to preserve those liberties, that weakens liberty. Do-nothingism is not an answer; something can and should be done.
I’ve argued this, but not with much hope. So central are the Declans in our political culture today that I confess I cannot see a way around them. I have sketched small steps; they seem very small. I’ve described a different ideal; it seems quite alien. I’ve promised that something different could be done, but not by any institution of government that I know.
The truth, I suspect, is that the Declans will win — at least for now. We will treat code-based environmental disasters — like the loss of privacy, like the censorship of censorware filters, like the disappearance of an intellectual commons — as if they were produced by gods, not by Man. We will watch as important aspects of privacy and free speech are erased by the emerging architecture of the panopticon, and we will speak, like modern Jeffersons, about nature making it so — forgetting that here, we are nature. We will in many domains of our social life come to see the Net as the product of something alien — something we cannot direct because we cannot direct anything. Something instead that we must simply accept, as it invades and transforms our lives.
Some say this is an exciting time. But it is the excitement of a teenager playing chicken, his car barreling down the highway, hands held far from the steering wheel. There are choices we could make, but we pretend that there is nothing we can do. We choose to pretend; we shut our eyes. We build this nature, then we are constrained by this nature we have built.
It is the age of the ostrich. We are excited by what we cannot know. We are proud to leave things to the invisible hand. We make the hand invisible by looking the other way.
But it is not a great time, culturally, to come across revolutionary technologies. We are no more ready for this revolution than the Soviets were ready for theirs. We, like they, have been caught by a revolution. But we, unlike they, have something to lose.
Appendix
In Chapter 7, I sketched briefly an argument for how the four modalities I described constrain differently. In this appendix, I want to extend that argument. My hope is to provide a richer sense of how these modalities — law, the market, norms, and architecture — interact as they regulate. Such an understanding is useful, but not necessary, to the argument of this book. I’ve therefore put it here, for those with an interest, and too much time. Elsewhere I have called this approach “the New Chicago School.”[1]
Law is a command backed up by the threat of a sanction. It commands you not to commit murder and threatens a severe penalty if you do so anyway. Or it commands you not to trade in cocaine and threatens barbaric punishments if you do. In both cases, the picture of law is fairly simple and straightforward: Don’t do this, or else.
Obviously law is much more than a set of commands and threats.[2] Law not only commands certain behaviors but expresses the values of a community (when, for example, it sets aside a day to celebrate the birth of Martin Luther King, Jr.);[3] constitutes or regulates structures of government (when the Constitution, for example, establishes in Article I a House of Representatives distinct from a Senate); and establishes rights that individuals can invoke against their own government (the Bill of Rights). All these are examples of law, and by focusing on just one kind of law, I do not mean to diminish the significance of these other kinds. Still, this particular aspect of law provides a well-defined constraint on individuals within the jurisdiction of the law giver, or sovereign. That constraint — objectively — is the threat of punishment.
Social norms constrain differently. By social norms, I mean those normative constraints imposed not through the organized or centralized actions of a state, but through the many slight and sometimes forceful sanctions that members of a community impose on each other. I am not talking about patterns of behavior: It may be that most people drive to work between 7:00 and 8:00 a.m., but this is not a norm in the sense I mean. A norm governs socially salient behavior, deviation from which makes you socially abnormal.[4]
Life is filled with, constituted by, and defined in relation to such norms — some of which are valuable, and many of which are not. It is a norm (and a good one) to thank others for service. Not thanking someone makes you “rude”, and being rude opens you up to a range of social sanctions, from ostracism to criticism. It is a norm to speak cautiously to a seatmate on an airplane, or to stay to the right while driving slowly. Norms discourage men from wearing dresses to work and encourage all of us to bathe regularly. Ordinary life is filled with such commands about how we are to behave. For the ordinarily socialized person, these commands constitute a significant portion of the constraints on individual behavior.
8.
Family Entertainment and Copyright Act of 2005 (P.L. 109–9), signed April 27, 2005. (Adds – 2319B to Title 17, which makes it a crime punishable with imprisonment to copy in a movie theater, without authorization, motion pictures or any audiovisual work protected under Title 17.); Intellectual Property Protection and Courts Amendment Act of 2004 (P.L. 108–482), signed December 23, 2004. (Amends the Trademark Act of 1946 to provide for increased criminal and civil penalties for individuals who willfully submit false information to a domain name registration authority in connection with an Internet address used to commit a crime or engage in online copyright or trademark infringement.); Satellite Home Viewer Extension and Reauthorization Act of 2004 (contained in Consolidated Appropriations Act, 2005, P.L. 108–447), signed December 8, 2004. (In addition to extending for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers and making a number of amendments to the existing section 119 of the Copyright Act, SHVERA directs the Copyright Office to conduct two studies and report its findings to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate. One study, due by December 31, 2005, required the Office to examine select portions of the section 119 license and to determine what, if any, impact sections 119 and 122 have had on copyright owners whose programming is transmitted by satellite carriers.); Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108–446), signed December 3, 2004. (Modifies – 121 of Title 17, providing for the establishment of the National Instructional Materials Accessibility Center ("NIMAS") and the free accessibility of certain materials — such as Braille, audio or digital text for use by the blind — via NIMAS.); Copyright Royalty and Distribution Reform Act of 2004 (P.L. 108–419), signed November 30, 2004. (Amends the Copyright Act to replace the Copyright Office copyright arbitration royalty panel system, created under the Copyright Royalty Tribunal Reform Act of 1993, with three copyright royalty judges to oversee adjustment of compulsory license royalty rates and distribution of copyright royalties.); Small Webcaster Settlement Act of 2002 (P.L. 107–321), enacted December 4, 2002. (Amends the Copyright Act to establish performance royalty rights for sound recordings transmitted through electronic digital technology.); Technology, Education, and Copyright Harmonization Act of 2002 (P.L. 107–273, Subtitle C of the
2.
See H. L. A. Hart, The Concept of Law, 2d ed. (New York: Oxford University Press, 1994), 6–13, 27–33.
3.
For example, Illinois law states:“The third Monday in January of each year is a holiday to be observed throughout the State and to be known as the birthday of Dr. Martin Luther King, Jr.Within 10 days before the birthday of Dr. Martin Luther King, Jr., in each year the Governor shall issue a proclamation announcing the holiday and designating the official events that shall be held in honor of the memory of Dr. Martin Luther King, Jr., and his contributions to this nation”; 5 Illinois Comprehensive Statutes Annotated 490/65 (West 1998).
4.
See Robert Cooter,“Expressive Law and Economics”,Journal of Legal Studies 27 (1998): 585.