Does technology require new law?

• Author: Friedman, David

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.

1. 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)

2. 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. Again, copyright law provides examples.

   Courts that followed the precedent of White-Smith by holding that machine language programs were not writings applied existing rules by asking whether the new entity fit the description of the relevant legal category. The answer was obviously "no;" a machine language program burned into a computer chip is not a writing in any ordinary sense of the word.

   Courts that came down on the opposite side of the controversy, and the Congress that ultimately settled the matter by revising the copyright code to explicitly cover software, (7) can be seen as fitting new technology into old law in a different way. They concluded that the purposes of the copyright act could best be served if programs were defined as writings--whether or not Programs were writings in any ordinary sense of the word. (8) In effect, they replaced "writings" in the relevant legislation and case law with "writings or computer programs," generating a new set of legal rules for software by piggybacking on an existing set of legal rules for writings.

   What about creating entirely new rules to fit new technology? One recent example is the Digital Millennium Copyright Act of 1998. (9) Part of its justification was that easy copying and communication, via computers and the Internet, had made copyright protection for intellectual property in digital form difficult, perhaps impossible. A promising alternative was technological protection, using encryption to build a virtual barbed wire fence around intellectual property whose legal protection was impractical. (10)

   Virtual barbed wire might be vulnerable to digital wire clippers. Creating programs to bypass technological protection requires technical skills that few users of the protected material possess, but the Internet makes it possible for those few to produce the tools and then make them readily available to everyone else. Congress responded to that problem with new legislation designed to make the creation and distribution of such tools more difficult. Earlier examples of new legal rules to deal with new technologies for creating or copying intellectual property include the Plant Variety Protection Act, (11) the Mask Works Act, (12) and the Audio Home Recording Act. (13)

   I began this essay by listing the different ways technology affects the law. As we have just seen, the history of copyright law over the past century provides examples of all of them. Legal problems associated with such effects are likely to become increasingly common as rapid technological development continues over the next few decades. In the next Part I describe three such developments and the legal problems they raise in some detail, and briefly sketch several more. Two of the three, human reproductive technology and cryonic suspension, have already begun to raise new legal issues. The third, artificial intelligence, may eventually prove the most difficult to reconcile with our legal system.

3. LEGAL ISSUES OF THE TWENTY-FIRST CENTURY

   1. Human Reproductive Technology

      Throughout almost all of human history, the fact that a child was born from the body of a particular woman was conclusive proof that she was the child's mother. Paternity, on the other hand, was in most cases impossible to establish; (14) it was a wise child that knew his father. Until very recently, these facts were reflected in the law by rules providing that the woman who bore a child was his legal mother and her husband the child's legal father, even if there was some evidence to suggest that he was not the biological father. (15)

      These facts are no longer true. Reproduction using a host mother implanted with an egg fertilized in vitro means that a child can be born from an unrelated woman. Genetic testing permits biological paternity to be established with a high degree of confidence. Legal rules at the state level have begun to change, by court decisions and by legislation, to reflect these new facts. (16)

      Further technological progress is likely...