Does Technology Require New Law?
Friedman, David, Harvard Journal of Law & Public Policy
Technological change affects the law in at least three ways: (1) by altering the cost of violating and enforcing existing legal rules; (2) by altering the underlying facts that justify legal rules; and (3) by changing the underlying facts implicitly assumed by the law, making existing legal concepts and categories obsolete, even meaningless. The legal system can choose to ignore such changes. Alternatively, it may selectively alter its rules legislatively or via judicial interpretation. In this essay I first discuss, as an interesting historical example, past technological changes relevant to copyright law and the law's response. I then go on to describe the technological changes that are now occurring or can be expected to occur over the next few decades, the issues they raise for the legal system, and some possible responses. I conclude with a brief discussion of the degree to which such changes can be addressed under current legal rules and the degree to which new rules may be required.
I. COPYRIGHT: THE TECHNOLOGIES
Prior to the copyright act of 1891, works by British authors were unprotected in the United States. Despite the lack of protection, British authors sometimes made more money from sales in the United States than from sales in Britain. The reason appears to have been that the printing technology of the time, hand set lead type, provided a substantial first-mover advantage. (1) The authorized publisher, having paid his fixed costs from sales during the period after the book had come out but before a pirate copy could be set and printed, could, if necessary, issue a lower priced "fighting edition" designed to prevent the pirate from recovering his fixed cost, making piracy unprofitable. This approach to rewarding writers became ineffectual once technological changes made it possible for a pirate to use photographic methods to free-ride on the typesetting effort of the original publisher, bringing out an unauthorized edition at a lower production cost immediately after the authorized edition appeared.
Over the past few decades, improved means of copying--xerography, cassette tapes, VCR's, floppy disks, CDR's--have made it easier to violate copyright law by copying protected intellectual property (IP). Computer networks make it possible to disseminate pirated IP in digital form anonymously, impeding enforcement of copyright law. On the other hand, Internet search engines make it possible to search for a single text string in over a billion locations in a few seconds at negligible cost, easing the detection of some forms of copyright violation. Thus technological change has altered the cost both of violating and of enforcing the law. In some cases--individual pirating of cassette tapes and computer software and off-the-air recording of television programs are obvious examples--technological advances have made pre-existing law unenforceable. We have moved, in the space of a little over a century, from technologies that made it possible to protect writings even without copyright law to technologies that make it impractical to protect programs even with copyright law. (2)
Finally, consider the issue of whether computer programs are "writings," and hence legally protectable by copyright. The problem arose because computer programs were a new sort of intellectual property, one that did not clearly fit any of the relevant legal categories. Some courts argued that they were writings. (3) Others argued that at least some programs, such as machine language programs burned into the ROM of a computer, were not writings, because they were not intended to be read by human beings. (4) They were functional parts of a machine--in John Hersey's memorable phrase, "elaborate cams." (5) Courts taking the latter position even found a precedent--a case ruling that player piano rolls, the functional equivalent of computer programs under an earlier technology, were not writings. (6)
II. COPYRIGHT: THE LEGAL RESPONSE
When technological change affects legal rules, the legal system can respond by trying to deal with the new technology under existing rules, by creating new rules, or by modifying old ones to fit the new technology. …