Merges’ discussion of IP in the digital age poses an almost Zen koan-like question – what, if anything, is the relevance of a book on IP in the modern era without mention of the Digital Millennium Copyright Act?
While it would be unfair to say that Merges never once utters the name of the statute (he does – twice, even! – in the footnotes), that omission speaks more about the focus of his work than do its 300 pages of scholarship. The DMCA, though not a copyright statute in the strict sense, has so greatly impacted the reality of IP in the digital age that ignoring it does a disservice both to his readers and his analysis.
The DMCA, though not a copyright statute per se, creates a separate right of action for any copyright holder who puts a digital barrier around his work in an effort to control access to it. If any user circumvents this barrier, he is liable to the copyright holder, regardless of whether he committed any wrong against the copyrighted work itself. This system, divorced from the proportionality of the copyright assigned to the protected work, casts doubt upon the usefulness of Merges’ parable of the bridge when applied to most of today’s consumable IP. If we were to factor the DMCA into Merges’ parable, it might look something like this:
Al owns a small plot of land along the river. His land occupies the southernmost point at which the land can be built; to the north there is a good mile or more of usable land, just as well-suited as his upon which the bridge can be built. This land is not Al’s; it is public land, owned by no-one. However, the country in question has recently passed a statute that makes it illegal to cut through fences in all situations. Al, in the middle of the night, erects a fence that blocks off the un-owned usable land along the river. The land inside the fence is not Al’s; in fact, he owns a relatively small portion of it. But the bridge-builders, upon arriving in the morning, cannot legally cut through the fence, even to access those parts of the land that are rightfully public.[1]
Just as the fence allows Al to extend his functional ownership of the land around his own, the DMCA anti-circumvention provisions allow copyright holders to put up “No Trespassing” signs well outside the property lines of what the court has deemed theirs.
The DMCA, it seems, throws a monkey wrench into Merges’ philosophical analysis. Anti-circumvention protection has become the unavoidable reality in digital IP, some pushback (such as Amazon’s DRM-free mp3 store) notwithstanding.
While Merges might brand me a Digital Determinist, it’s hard to deny that the genie is out of the bottle when it comes to copyright online. Even strong IP rights become almost unenforceable when creative works find their way to the internet. Rather than restructuring the underlying IP rights to reassess the relative value of creative protection and the new technological reality, Congress instead created a secondary set of rights which ease enforcement. Unfortunately, the availability of these enforcement rights is utterly unrelated to the extent of the underlying copyright, and thus to Merges’ notion of proportionality. The resulting reality is that IP enforcement is often disproportionate to the scope of the relevant contribution. Unsurprisingly, this inconvenient truth is omitted from Merges’ analysis.
I find Merges’ theory of proportionality to be optimistic, at best. Because it relies on the courts as a mitigating force, it presupposes the ability and willingness of affected parties to bring suit. However, the notion of proportionality, while great in theory, has little to do with the state of modern IP in practice.
[1] Because I’m fond of indulging in creative analogy, I’ll throw this in as well. Some may recall the story of Yertle the turtle. Yertle (whom we shall refer to by another, completely randomly-selected name – say, “Walt” – in order to avoid running afoul of Dr. Seuss’ estate) is king of a rather small pond. For a long time, the tiny rock that serves as his throne allows him to only see the extent of his own pond, and all turtles agree that, his sight and his kingdom being coextensive, Walt is king of all he surveys. One day, however, Walt theorizes that if he could only see the land beyond the pond, he would rule that as well. So Walt orders the other turtles in the pond to form a giant stack, upon which he perches himself proudly, claiming – without any actual justification – everything for miles around him. Suddenly, this stack of turtles has let him expand his kingdom from a tiny pond to (in his mind) the entire surface of the earth! (Before he can exercise dominion over his newfound territory, however, a turtle at the bottom sneezes, and the stack comes tumbling down, leaving him “king of the mud.”)
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