This is a radical change from life in real space. In real space, there are any number of ways to “use” a creative work without triggering the law of copyright. When you retell a joke to friends, the law of copyright is not invoked — no “copy” is made, and to friends, no public performance occurs. When you loan a friend your book, the law of copyright is not triggered. When you read a book, the law of copyright would never take notice. Practically every single ordinary use of culture in real space is free of the regulation of copyright. Copyright targets abnormal uses — such as “publishing” or public performances.
The gap between normal and abnormal uses began to close as the technologies for “copying” were democratized. Xerox created the first blip; cassette tape recorders were close behind. But even these technologies were the exception, never the rule. They raised copyright questions, but they didn’t inject copyright into the center of ordinary life.
Digital technologies have. As more and more of ordinary life moves onto the Internet, more and more of ordinary life is subject to copyright. The functional equivalent to activities from real space that were essentially unregulated is now subject to copyright’s rule in cyberspace. Creativity activity that never needed to grapple with copyright regulation must now, to be legal, clear a whole host of hurdles, some of which, because of the insanely inefficient property system that copyright is, are technically impossible. A significant portion of creative activity has now moved from a free culture to a permission culture. And the question for the values of free speech is whether that expanded regulation should be allowed to occur unchecked.
Again, I have my own (overly strong) views about the matter[69]. I continue to be astonished that a Court so keen to avoid “raising the costs of being a producer of sexual materials troubling to the majority”[70] is apparently oblivious to the way copyright law raises the costs of being a producer of creative and critical speech.
But for our purposes here, we should simply note once again a latent ambiguity in our constitutional tradition. As the Supreme Court has held, the First Amendment imposes important limitations on the scope of copyright. Among those are at least the requirements that copyright not regulate “ideas”, and that copyright be subject to “fair use.”
But these “traditional First Amendment safeguards” were developed in a context in which copyright was the exception, not the rule. We don’t yet have a tradition in which every single use of creative work is subject to copyright’s reach. Digital technologies have produced that world. But most of the rest of the world has not yet woken up to it.
So what should First Amendment values be in this world? One view is that the First Amendment should have no role in this world — beyond the minimal protections of the “idea/expression” distinction and the requirement of “fair use.” In this view, the scope of Congress’s regulation of creative activities is, subject to these minimal conditions, plenary. Any creative act reduced to a tangible form could be subject to the monopoly right of copyright. And as every creative act in digital context is reduced to a tangible form, this view means that everything in the digital world could be made subject to copyright.
The opposite view rejects this unlimited scope for copyright. While the monopoly right of copyright makes sense in certain commercial contexts, or more broadly, makes sense where it is necessary to “promote . . . progress”, there is no legitimate reason to burden the vast majority of creative expression with the burdens of copyright law. That a kid making a video book report needs to clear permissions with the author of the book, or that friends making a mashup of a favorite artist can’t do so unless the label has granted them permission, extends the reach of copyright beyond any legitimate purpose.
But between these two views, it is plain that the Framers never made a choice. They were never confronted with the option that copyright could (efficiently) control every single use of a creative work. Any control possible in 1790 would have been radically too burdensome. And while I have my bets about how they would vote, given their strong antipathy to monopolies and the very restrictive IP clause they enacted, that’s nothing more than a bet. If there’s a choice to be made here, it is a choice they didn’t make. It is instead a choice that we must make: Whether the values of free speech restrict this radical increase in the scope of copyright’s regulation.
The Regulators of Speech: Distribution
So far my arguments about architecture have been about architectures in cyberspace. In this final story, I blur the borders a bit. I want to use the architecture of cyberspace to show something important about the regulation of broadcasting.
The Federal Communications Commission regulates speech. If I wanted to broadcast a political speech on FM radio at a frequency of 98.6 MHz in San Francisco, the FCC would have me prosecuted[71]. To speak on 98.6 in San Francisco, I need a license, because to speak using these radio frequencies without a license is a crime. It is a crime despite the fact that the Constitution says, “Congress shall make no law . . . abridging the freedom of speech, or of the press. ” What gives?
The answer rests on a deeply held assumption at the core of our jurisprudence governing broadcasting technologies: Only a fixed amount of “spectrum” is available for broadcasting, and the only way to facilitate broadcasting using that spectrum is to allocate slices of it to users, who are then the ones entitled to use their allocated spectrum within a particular geographical region. Without allocation, there would be chaos, the assumption goes. And chaos would kill broadcasting.
This view first came on the constitutional scene after Congress passed the Radio Act of 1927[72]. In 1926 Secretary of Commerce Herbert Hoover gave up the practice of controlling broadcasting after a number of circuit courts held that he did not have the power to do so. If he did not have the power, he said, then the invisible hand would have to govern. But Hoover was no real friend of the invisible hand. He predicted what would happen when he withdrew federal jurisdiction — chaos — and some suggest his aim was to help bring about just what he predicted. Stations would override other stations, he said; broadcasting would be a mess. When some confusion did arise, Hoover used this to justify new federal regulation[73].
Congress then rode to the rescue by authorizing the FCC to regulate spectrum in a massively invasive way. Only the licensed could speak; what they said would be controlled by their license; they had to speak in the public interest; they had to share their resource with their opponents. In short, Congress said, broadcasting had to be regulated in the same way the Soviet Union regulated wheat[74]. We had no choice. As Justice Felix Frankfurter said in upholding the regime, such sovietism was compelled by the “nature” of radio[75].
From the beginning, however, there have been skeptics of this view. Not skeptics about the idea that spectrum must be regulated, but about the manner by which it is regulated. Is it really necessary to have a central agency allocate what in effect are property rights? As these skeptics argued, the common law had done just fine before the federal government entered. It could also do fine if the government simply made spectrum a kind of tradable property right. Ronald Coase was most famous for pushing for a regime in which spectrum was auctioned rather than licensed[76]. And Coase’s idea caught on — fifty years later. In the United States, the FCC now auctions huge chunks of the broadcasting spectrum. Just this year, it is positioning itself to sell prime real estate spectrum — the part that used to broadcast UHF television.
70.
Yochai Benkler, "Net Regulation: Taking Stock and Looking Forward,"
71.
See, e.g.,
73.
See
74.
See Turner Broadcasting System, Inc. v Federal Communications Commission, 512 US 622, 637–38 (1997); see also Huber, Law and Disorder in Cyberspace.
76.
See Ronald H. Coase, "The Federal Communications Commission,"