“HACKING” COPYRIGHT REGISTRATION: IMPLEMENTING SMART INTELLECTUAL PROPERTY RIGHTS IN CYBERSPACE

Abstract

This paper, originally written for a law school technology seminar course I took in May 2019, argues that change is needed in the way expressive works are registered for copyright protection. I thought it was ripe to revisit this issue in a social media setting, as opposed to the academic one for which it was originally written, due to the explosion of interest in non-fungible tokens ("NFT's"). Although NFT's were conceptually understood in 2019, there was little popular consensus among blockchain enthusiasts on what, exactly, to call them. The paper argues that trusted technologies like blockchain networks are better at imbuing creative works with rights through non-fungible tokenization and are more responsive to market and social inputs than the current registration and legal system. This paper also argues that, as one of the two intellectual property rights protected by the U.S. Constitution, copyrights and the process to register them must remain "balanced," otherwise our political system will encounter challenges. Now that NFT's have gained a certain level of recognition and are better understood by the public at-large, I think this is a good time to revisit the proposition that our copyright system must adapt to current technology that is better suited to protecting the valuable rights at stake.

Introduction

Historians now realize that technological innovation of a tectonic scale drove eighteenth century governments to create some of the first copyright laws.[1] Information could be disseminated at a scale that fundamentally altered how people learned about the world around them. Physical books were no longer the provenance of abbey monks and court scribes—their origin instead was from the printer’s press.[2] History recorded the “cataclysmic effect on society of inventions of new media” for the exchange of information between people.[3] Francis Bacon hailed the landmark event by proclaiming all should “take note of the force, effect, and consequences” of the historical significance of the printing press.[4]

Copyright laws protect authors from losing the value of their work as a result of unintended use, dissemination, distribution, or consumption by the public.[5] Although some may say that is an oversimplification of the complex negotiation that is copyright,[6] it presents a roadmap to begin discussing copyright’s origin and how protective regimes developed from the historical perspective. The printing press lowered the cost to produce, distribute, and disseminate intellectual property and, through that process, lowered the cost of collecting the value of the printed works.[7] Lowered costs of production may result in a tragedy of the commons: seeing no value in their work, authors retain their intellectual property but it is ultimately the public who suffers from the absence of that work’s intellectual contribution.[8] What was needed was a regime that balanced the value of the work to the public against the incentive of the author to keep the value of the work for themselves. In short, by lowering the cost of production and distribution, the printing press first created –then quickly accelerated– the need for copyright protection.

The Internet, or “cyberspace,”[9] is the modern innovation challenging copyright ownership and protections originally envisioned by the first copyright laws. But those challenges are not insurmountable. In a functional sense, the Internet creates similar tensions and a tragedy of the commons like the ones introduced by the printing press.[10] However, both the Internet’s capabilities and normative use exponentially intensify those tensions.[11] Some seek to relieve those tensions by creating new systems of copyright protection using innovative licensing solutions. One novel protection framework, the Creative Commons,[12] is an implicit recognition of the current registration system’s shortcomings.[13] But, to achieve vindication of copyright ownership against alleged copyright infringers still requires use of the outdated registration system currently in place.[14] Authors cannot solely rely on the Creative Commons to fully protect their work. Therefore, a disconnect exists between the modern copyright “patch” on the Internet (i.e. Creative Commons) and the current vindication method (i.e. registration in the U.S. Copyright Office then lawsuit). This paper fundamentally argues that an overhaul of the registration system is needed: one that alleviates the system’s shortcomings recognized by Creative Commons while further maintaining the balance between the vindication of authors’ copyrights and the public’s eventual right to the author’s disclosure. What is needed is a system capable of imbuing creative works with “Smart IP Rights.”

The main impetus to write on this subject came from a presentation at Indiana University’s Robert H. McKinney School of Law by Professor Gustavo Rabay.[15] His presentation, titled “Shielding Copyright in the Blockchain,” outlined the process to tokenize creative works, thereby granting those works Smart IP Rights. Professor Rabay’s presentation outlined the advantages and challenges of a tokenized Smart IP Rights system. This paper expands on Professor Rabay’s presentation by arguing that the United States copyright system ought to implement Smart IP Rights by overhauling the registration process.[16] As a result of that overhaul, authors may maintain the values prescribed by historical copyright statutes as they are appropriately understood in the modern context and those values may be better balanced against the rights of the public commons.[17]

Part I of this paper explores the historical origins of copyrights. It recognizes that technology necessitates copyright protection. That protection introduces a tension recognized by the Framers of the Constitution which must be balanced by a “modality triumvirate.” Part II identifies the Internet as the modern technological driver of copyright tension. However, despite the novel source of tension, the mere existence of tension does not require an entirely new copyright system to achieve coexistence between protection of works and the rights of a public commons. It argues the copyright protections envisioned by the Framers is still applicable in light of the Internet’s challenges, but should be implemented in a new, modern fashion. Part III introduces that new, modern system and the system’s components, features, and functionality. Finally, Part IV proposes two questions about the policy effects of such a system which were introduced during Professor Rabay’s presentation.

I.               Ye Olde Copyright Origins

The revolutionary effect of the transition from copied manuscripts to printed books cannot be overstated. Francis Bacon opined all “should note the force, effect, and consequences” of the printing press because it has “changed the appearance and state of the whole world.”[18] The actual “force, effect, and consequence” is best illustrated by example. Before the printing press, creating manuscripts was a time-intensive, laborious process.[19] In 1483, a printing company charged “three florins per quinterno” to print a translated edition of Plato’s Dialogues whereas a scribe would charge “one florin per quinterno” for copying the same. The printing company would have produced 1,025 copies of Dialogues; the scribe would have produced only one.[20] In this way, the printing press industrialized the dissemination of information and culture.

 Although proto-legal notions of copyright existed before the invention of the printing press,[21] increasingly available (and reproducible) works spurred a shift in normative understandings of rights allocation among authors, copyists and publishers, the new market of readers, and the government. The first book printed in English was William Caxton’s translation of Recuyell of the histories of Troy in 1474-75.[22]

Just as Bacon immediately recognized the transformative nature of the printing press, its disruptive capacity soon invited the scrutiny of the British Crown. Henry VI created the position of the King’s Stationer in 1485. The license granted the King’s Stationer legal protection to import books, both printed and copied. Monarchs often used their ability to grant protective licenses to suppress dissidence distributed through printed material.[23] For example, in 1555 during the rise of the Protestant Reformation, Queen Mary, a Catholic, banned books containing “wicked doctryne.”[24] Later, in 1557, the King’s Stationer position became the guild to which all printers belonged: the Stationers’ Company. The Stationers’ Company centralized printing activities so the Crown might vigilantly oversee―and censor―what they produced.[25] Authors relied on this group, who were not known for either generosity or honesty, to disseminate their works to the public by entering their titles on a central registry.[26] Despite an otherwise sour disposition, the Stationers’ Company did not altogether disregard the new market of readers nor the value of printed works to the public commons. They entered into an agreement with Sir Thomas Bodley in 1610, obligating Stationer’s Company members to send a copy of every book published to the Bodleian Library. This library is the main research library of Oxford University and a resource of national and international scholarship.[27]

Despite the rise of the Stationers’ Company as an influential group,[28] British monarchs continued to grant individuals printing privileges following their royal charter. For example, Henry VIII was as liberal with grants of printing privileges as he was with his marriages. These printing privileges could be quite lucrative for the holder, sometimes granting monopolies on entire classes of publications. This practice continued for well over a century, drawing criticism from the loyal Stationers’ along the way.[29]

Up until 1710, “copyright” did not exist, at least, as the allocation of rights and the balance of values is understood today. Prior to 1710, the right to print and disseminate a work was viewed as an exclusive printing privilege; the financial benefit of that privilege primarily flowed to the printer by virtue of the royal licensure.[30] In 1695 the Licensing Act which gave the Stationers’ their power to censor pre-registered works was allowed to lapse.[31] The Stationers’ monopoly expired. In their place new printers whispered to the embers of dissent; distrust of monopolistic institutions (and monarchies) was spreading like a flame.[32] As enthusiasm grew, trade unions of booksellers lobbied Parliament for legislation that emphasized economic incentives and trade regulation over censorship and monopolies.[33]

Their lobbying efforts culminated in Parliament passing The Statute of Anne in 1710 which was hailed as the first “copyright” statute.[34] Its principal edicts: emphasized trade regulation over censorship; opened up the book trade to non-Stationers’ members by providing that anybody may print a book; retained the central registry managed by the Stationers’ but a prohibition on their refusal to register a title; and required copies of all published books be delivered to designated libraries. Most critically, the Statute of Anne limited the duration of the state’s protection: fourteen years, plus another fourteen if the author should still be living at the expiration of the first period.[35] This was the first protective measure implemented to create an economic incentive for authors to disclose their ideas and expressions in the form of tangible works. The economic incentive was a quid pro quo between the Crown, the printers, and authors; the authors and printers gained monetarily from the sale of the books while the crown gained the taxes created by those sales. Finally, the statute recognized the significance of the public interest at stake: when the author’s interest expired, all rights to the work passed to the public commons.

The Statute of Anne’s groundbreaking economic policy drives modern intellectual property jurisprudence today. Judge Richard Posner and Professor William Landes expressed skepticism that modern theories underlying intellectual property protection were (and are) anything but economic in nature.[36] In dismissing noneconomic theories as the explanatory basis or normative significance of copyright, Posner and Landes also recognized the “complexity and heterogeneity of modern intellectual property” law, doctrines, and legal regimes regulating that property “are too great to enable even a comprehensive economic analysis within the confines of a single volume.”[37] Professor Landes and Judge Posner’s respective competence in the field of economics gives this view of intellectual property regimes a certain, hefty weight. Further, Posner is also a celebrated jurist. And as a celebrated jurist, it is intriguing that his view also implies courts tasked with assessing even the economic value created by intellectual property cannot do so completely, let alone by any other measure of value. To summarize this implicit shortcoming in courts’ evaluation paradigm endemic to assessing intellectual property’s value: courts cannot efficiently[38] evaluate each individuals’ value created by the copyrights they use and enjoy.

Posner’s notion that copyright law is a regime whose origin is most firmly rooted in economics has traction with other academic audiences. Joseph Loewenstein notes:

The changes in industrial organization characteristic of Early Modern economic practice can be seen with particular clarity in the early history of the book trade: it is exemplary. In fact, the book trade led some of those transformations: it was exemplary. That is, the book trade is both a significant instance and a significant agent in the transition from feudalism to capitalism. In effect, then, an account of the late renaissance reader is significantly an account of the early capitalist consumer; the history of printing is a history of early capitalist industry; the book is quintessentially a modern commodity and the author in some ways quite an unexceptional laborer. Therefore, the intellectual, political, and commercial competitions that, I will argue, produce modern intellectual property as we know it are vividly engaged in struggles central to the construction of post-feudal reality.[39]

But here, Loewenstein opens the door to alternative sources of copyright policies other than simply “commercial competition.” Political institutions and the authors’ intellectual capital were also foundational policy considerations which now support modern intellectual property. Like Loewenstein, I argue that it is these three policy modalities―government, individual, and economy― together which form the well from which copyrights flow; a complementary modality triumvirate.

It was these three policy modalities that led the Framers of the United States Constitution to adopt copyright protections at the outset of their experiment in government. But economic arguments alone cannot explain the reason the Framers featured copyright so prominently in the founding documents.[40] In fact, they thought copyright’s intrinsic value (i.e. protection of expression) was so critical to America’s post-colonial government that they featured it in the first Article of the Constitution.[41] Later, they further reinforced its values within the freedoms enshrined in the First Amendment.[42] They recognized authors’ expressions had value beyond their economic value and that those expressions were a keystone component of a fully functioning republic.[43]

By protecting expression, the First Amendment reads like a roadmap to change our democratic republic. That is, subject to certain exceptions, the government may not suppress expression directed at it.[44] The First Amendment protects authors who disclose an idea—or the germ of revolution—through the Freedom of Speech.[45] Following disclosure, the Framers recognized that revolutionary spark now belongs, in a sense, to the public. Yet the speaker retains a marginal property right in the particular expression of that idea by virtue of their copyright interest in that expression. Indeed, through their copyright interest, the author remains entitled to the rights associated with their particular expression.[46] Now, the public is free to assemble around that idea, to discuss it, to grapple with the consequences of it, and to challenge it in the public forum. Except in instances of outright reproduction, new authors in the assembly are free to use the idea as inspiration for new expression.[47] The public may strike their own expressive sparks without giving either credence or care to the original author’s property interest. This is the Freedom of Assembly.[48] Their respective original expressions too are protected by copyright, just as the first author’s original expression was protected.[49] The revolutionary spark, now alight for many, is further fueled by the bellows of institutional authorship: the press. These authors are (largely) free from government intervention as they go about their own expressive work, protected by both copyright and the Freedom of the Press, stoking the furnace of progress.[50] Finally, a critical mass of the voting public coalesces around this white-hot notion originally put into the public forum by the first author’s disclosure. These voters employ the Freedom to Petition the government to enact legislative change, implementing the author’s idea.[51] Therefore, the very foundation of American liberty itself is based on the underlying assumption that the expression which produces it is protectible.[52]

Through the values in the First Amendment roadmap, the Framers calibrated the scales balancing the copyright modality triumvirate. They realized expression cannot be suppressed as it was under the Stationers’ Company; expression must be easily distributed.[53] Because expression must be distributed, they imported the author’s economic incentives from the Statute of Anne; expression has protectable economic value.[54] Simultaneously, the Framers limited that interest by recognizing the public’s reversionary right in the expression of that idea following the expiration of the author’s limited protection; expression is ultimately the public’s property.[55] Fueled by continued distrust of monopolies and monarchical institutions, the Framers installed the final component: the First Amendment; centralized control of expression should be limited.

Thus, the First Amendment was the final piece necessary to calibrate the scales of copyright. Without protecting the individual’s economic interest in the expression and that individual’s expression from government repression and public misuse, the public loses the benefit of enjoying a government that better suits its constituents through its reversionary interest in the copyrighted expression. Therefore, copyright is the keystone component to a properly functioning democratic republic. The triumvirate must remain balanced and complementary to ensure our system remains viable. The Framers realized that it was ultimately the public that risks falling prey to monarchical institutions and monopolistic interests if the scales of copyright tip too far in favor any one part of the tripartite.

II.             New Technology—Same Olde Problems

Just as copies of Plato’s Dialogues were one thousand times more reproducible as a result of the printing press,[56] the Internet exponentially increased the capacity to share and spread information.[57] Here, too, an example is in order. In 1768, when Captain James Cook journeyed to Australia, it took almost three years before he returned to England to describe what he found there. On June 15, 2009, twenty hours of new content was posted to YouTube every minute, four hundred ninety four exabytes of information were transferred across the globe, two and a half billion minutes were spent on a cell phone in Europe, and millions of inquiries were sent to Google’s search engine.[58] The Internet embodied a shift from the paradigm of James Cook’s analog world to that of the digital world. In the analog world the spread of information relied on physical means of transport and human agents. In the digital era information duplicates and travels instantaneously, occasionally independent of human intervention.[59]

Like the printing press before it, the Internet creates its own set of unique tensions. The Internet’s tremendous capacity to spread information[60] exists in a dual state: digital and physical.[61] Courts experience some measure of difficulty when allocating rights between creators and end-users in the two realms which exist, in a way, simultaneously.[62] This creates a set of norms where consumers of physical property like cell phones own their products while developers of the software operating those devices own the rights to how the device functions—or if it can function at all without their consent or participation.[63]

The similarities between the Internet’s revolutionary capacity to spread information and the printing press are remarkable. But, Congress, like the Crown at the advent of the printing press, has viewed the Internet as a threat instead of a boon to authors and other creators of expressive content.[64] Instead of Captain James Cook, legislators saw Captain William Kidd trolling the high seas of the Internet. To combat the threat of piracy on the web, Congress published a report and passed legislation which attempted to rebalance intellectual property law by fortifying copyright protection online.[65] The balance they struck, however, may be more similar to royal licensure than the Statute of Anne; it mostly benefits a privileged few while restricting rights to many. For this reason, some scholars found Congress’s reinterpretation of copyright protection suspect.[66]

Congress was not the only party attempting to resolve perceived imbalances. Projects like the Creative Commons licensing framework aimed to harmonize the practical realities of distributing creative works online with the shortcomings of modern-day protective legal regimes. Creative Commons grants authors greater control over their works and how they are “copied, distributed, edited, remixed, and built upon"[67] among end-users through licenses. The licenses have three layers: the legal code attached to the licenses, the human readable portion of the license, and the machine-readable component. The legal code incorporates legal language to describe the type and extent of the rights granted through the respective licenses. The human readable portion of the license, also called the Commons Deed, is a method to teach creators and end-users about the extent of the rights granted by each license. Finally, the last layer embeds machine-readable code into the content itself. These three layers combine to create a “spectrum of rights” that the “creators of works can understand, their users can understand, and even the Web itself can understand.”[68] Interestingly, the Creative Commons gives creators the option of whether they want to retain any rights at all or whether their works should go straight into the public domain. One scholar suggested that option should be prominent: copyright owners ought to consider whether they retain any protection over their works at all or whether their works are more valuable in the public domain.[69]

Given the attention paid to digital copyrights by Congress and the Creative Commons, it stands to reason that all should be rosy in the proverbial rose garden. Some argue, through no fault of the efforts of groups like the Creative Commons, that all is not, in fact, rosy. Joshua A.T. Fairfield believes that modern implementation of intellectual property law overreaches its historic bounds.[70] Fairfield points to two developments which he argues are at fault.[71] First, the rise of companies using digital rights management (“DRM”) to control how their content was distributed online. The second was the push toward novel business models to monetize that content. By attempting to control their rights online and alleviate the “twin problems of payment and privacy,”[72] those companies recognized that privacy itself was a form of currency. For these reasons, Fairfield would argue the modern system of copyright appears more feudal than capitalistic.[73] Some problems, like the Crown’s suppression of individual rights through the watchful eyes of the Stationers’ Company, die hard.

By exploiting contract law and copyright law, some companies usurp the distribution of copyrights between themselves and the public (i.e. their own consumers). Ownership in the physical realm is threatened by ownership rights asserted in the digital realm because end-users of physical products often agree to owner’s licenses to use the digital aspects of the physical products they purchase. As a result, end-users are captives of a catch-22: either abide by the licenses governing use of the software and lose control over their physical products, or break their licenses, use their products as they see fit, and become copyright infringers.

This result is, effectively, an overuse of copyright.[74] It appears, however, the courts may not be the proper avenue to resolve this predicament as they are simultaneously struck by indecisiveness and unwillingness to reign in copyright overuse.[75] Unfortunately we cannot find guidance from the Founders either. They did not envision such a “vaporous cargo”[76] like the bits and bytes that ferry expressive content to and froe on the Internet. Instead, they imagined cargo carried by the likes of Captain James Cook (actual books!)[77] when they imported the notion of copyright law from England. Further, Congress appears unlikely to take the control from copyright owners it granted in the Digital Millennium Copyright Act.

Therefore, without another option to turn to, I argue in favor of “hacking” copyright law to rebalance the scales calibrated by the Founders, realign the distribution of rights, and regain a reasonable normative understanding of property ownership in the digital age by implementing a copyright registration system that grants Smart IP Rights. Under a Smart IP Rights regime, the modality triumvirate may once again be restored to its station of prominence. Smart IP Rights may be like the Statute of Anne, under which the book trade flourished, heralding the transition from feudalism to capitalism.[78]

III.          The New Copyright Registration System

Property systems recognize economic trade-offs: those systems are not free and there are costs associated with asserting rights to property.[79] Costs are levied to define rights, monitor trespasses, and prosecute trespassers.[80] That is why only big-ticket, physical items like houses, boats, and cars traditionally have registries on which owners notify the public and assert their rights. Those registries are costly to maintain and therefore the items they track are proportionally costly.

But the Internet reduces the costs of implementing administrative measures to establish rights, monitor trespass, and trade property.[81] By implementing a trusted system, some argue that the Creative Commons’ goal of unbundling rights (i.e. divorcing the overused union of contract and copyright) can be achieved.[82] The code behind these systems allow authors to distribute their work and end-users to access that work subject to rights within a digital token.[83] Where once only expensive items could be tracked and categorized on a registry, now myriad non-rivalrous, creative works may be stored in a database and released to the end-user who agrees to the terms of the digital contract ahead of time. This solution presents two challenges: one to privacy (i.e. the United States Copyright Office tracking end-users through their use and dissemination of creative works) and the other to the perpetuation of the imbalance created by the fusion of contract and copyright law. The former is best addressed in the next Part; the latter I will explain now. On balance, both challenges find viable solutions. I argue implementing a trusted system to register authors’ works would better achieve the balance of rights intended by the Founders and better achieve their original vision of liberty in the modern era.

Trusted systems lower the cost of maintaining a database of all the creative property that authors wish to protect through Smart IP Rights. Property, after all, “is the law of lists and ledgers.”[84] The new copyright registration system, or what I will call “Registration System 2.0,” would embody such a trusted system. However, this is not the Stationers’ Company registry subject to centralized control. A trusted system does not necessarily perpetuate the state of affairs under a DRM scheme, it does not centralize rights subject solely to the control of the companies who wrote restrictive licenses subjecting their customers to a catch-22, nor does it centralize power to control expression with the government.[85] Instead, Registration System 2.0 is a database that is decentralized and distributed to many diverse participants which secures the transactions conducted in vaporous cargo between authors, intermediaries, and end-users.[86] It is not subject to direct control by either the author, the end-user, or even the government.[87]

Where the trusted system agrees a transaction has occurred, that transaction is immutable and irreversible.[88] In a sense, then, because trusted systems are immutable they are described as trustless, which is to say the participants do not need to know if the opposing party is reliable or trustworthy.[89] Though the two parties may experience opposing motivations as they conduct their digital exchange, they disseminate and use digital content knowing the other party (likely) cannot violate the terms of their “Smart Contract.”[90] Indeed that contract itself is decentralized computer code,[91] like the third layer of the Creative Commons’ licensing framework.

Tracking each instance of a creative work as it is created, used, copied, viewed, or remixed may seem at first glance like an unachievable goal because it requires an abundant amount of computational resources. This is partially true, but only in the sense that some trusted systems do require abundant (or even exorbitant) computational power.[92] But one trusted system has been described as a “’planetary scale computer’ that changes everything.”[93] Therefore, the question is not if we are capable of implementing such a system, but how we should implement it.

Registration System 2.0 would be a host of protocols consisting of a trusted network and a code library or suite that can interact with many different software programs that operate in concert with other internet protocols. Upon registering content with Registration System 2.0, authors use a software interface to define permissions and rights much like when a file is saved at a particular location on a hard drive. Maybe only certain network users can access that file according to an access control list? In that case, the save location cannot be arbitrary; similarly, neither can the rights the author chooses to grant be arbitrary.[94] Perhaps an end-user may only share the content with three people before they must pay the author? Perhaps the author only wants to retain all legal rights to the work for two years? In this way, the author can fine tune their control over their work. Authors can even change the permissions later, for example, if the work turns out to be a commercial success.[95] The software program with the installed Registration System 2.0 library or extension then assigns the work a unique cryptographic identifier which is tracked like an IP address as it is copied by hosts and routers, propagating through the Internet. Much like the licensing framework envisioned by Creative Commons attaches rights to digital works and not the particular copy, Registration System 2.0 is the implementation to attach rights to the specific cryptographic identifier and not the ephemeral copy. Registration System 2.0 compliant software programs used to view and create content can algorithmically generate data regarding digital content and the assets used to create it. That way, should downstream creators register their own works using preregistered content, upstream creators may still control how their work is used. In this way the code itself is a form of licensing contract that enables fine-tuned, dynamic control over aspects of the negotiation between authors, “remixers,” and end-users.[96]

Registration System 2.0 would operate like two robotic agents who automatically conduct the complex negotiation on behalf of the author and end-user. Imagine an image created by a digital artist. The software program used to create it, say Adobe Photoshop, queries the Registration System 2.0 network for a new cryptographic identifier, which the network assigns to that file.[97] The author has set up a default rights profile to grant rights to the work they create. These rights dictate end-users who purchase the work for $0.05 may only sell it three times before the rights to distribute it return to the author; end-user 1 sells to end-user 2 who sells to end-user 3 who may no longer sell that work. The author believes that if so many people are interested in their work then they should increase the price to satisfy that demand, but they cannot know the extent of that demand ahead of time. Registration System 2.0 allows the author to respond to this market demand. But say end-user 3 does not wish to purchase any work that has such a limitation. End-users can predefine their own expectations regarding what they view, the content they wish to consume, and how their interactions occur online. The way end-user 3 would experience the Internet, their screen would either display a warning to them about the limitation on the author’s work they are about to purchase or remove the work from what is rendered on their screen entirely like an ad blocker. In this way, Registration System 2.0 automatically negotiates on behalf of both parties subject to their individual, subjective expectations about the content they view, create, and consume. Because of this aspect of Registration System 2.0, it can dramatically affect the normative understanding of rights allocation.

But how is this better? How is this not the inflammation of DRM and restrictive licensure magnified through the power of technology? First, it is code, not law, granting and limiting rights.[98] This code can dynamically realign norms of content creation and use toward the patent and copyright clause’s original purpose in the Constitution: “promoting the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[99] If the decentralized network of computers securing Registration System 2.0 cannot come to a consensus on whether a particular work is promoting science’s progress or if it determines the work is not temporally limited enough to achieve that purpose then the network may alter the allocation rights sua sponte through powers encoded in the protocols governing it.[100] By architecting Registration System 2.0 in such a way to guarantee the Constitution’s intended purpose, we also guarantee the existence of the public’s interest in the intellectual commons.[101] The network can dynamically adjust scales of the modality triumvirate in place of courts who are less suited to evaluate the subjective value than are individual, negotiating automatons and in place of Congress whose Digital Millennium Copyright Act tipped the scales in favor of the content creators.

IV.          Two Questions For the Future

Following Professor Rabay’s presentation on Smart IP Rights, two questions were posed: one by McKinney School of Law’s Vice Dean and Professor Karen E. Bravo, and one by myself. Vice Dean Bravo’s question involved the rights of the individuals who are traditionally subject to discrimination. My question involved the rights of individuals yet to be recognized in law or society.

Vice Dean Bravo’s thought-provoking question revolved around the promises democratizing technologies like trusted systems make. Her concern was that systems promising greater access to rights often lose sight of that promise. Registration System 2.0 is not immune from this skepticism. On one hand, the system promises to better allocate copyrights, on the other hand, some may view Registration 2.0 as a substantial decrease in privacy rights.[102]

By validating every transaction and overseeing the negotiation between authors and end-users, Registration System 2.0 bears witness to every use, display, and creation of expressive works. This is tremendously invasive! Trusted systems like Registration System 2.0 rely on public key cryptography to generate and store public and private “keys.”[103] Private keys must be secured with utmost care because if compromised, the private key would allow any bad actor to access and dispose of the user’s rights.[104] The private key cryptographically signs transactions so the network knows the owner of the rights actually intended to enter into the transaction.[105] In this way, public key cryptography allows people to share secret information by exchanging information entirely in the public.[106] Therefore, Registration System 2.0’s developers should remain mindful of the rights at stake and ensure the system preserves anonymity to the greatest extent possible.

My question was regarding rights for robotic entities. Just as the negotiation between the end-user and the author occurs through automation and artificial intelligence, content creation can also be managed by non-human entities.[107] Trusted systems allow computer programs to generate private keys, enter into transactions, and accumulate tokens by using Smart Contracts.[108] Some believe Smart Contracts are the most promising value proposition of trusted system technology.[109] Because Registration System 2.0 tokens represent legal rights, the logical extension of this is that artificially intelligent entities will be able to “hold” these tokens, to dispose of them however they “please,” and can assert those rights within the digital world. Therefore, I argue that just as developers must consider individuals’ privacy rights, society should begin to consider what the implications of Registration System 2.0 would mean for artificially intelligent entities. Just like the printing press created a renaissance in the context of new ways of thinking about rights between the public and authors, Registration System 2.0 should drive a discussion regarding non-human rights and humans’ duties towards them.

Conclusion

Given the rate at which technological innovation occurs, perhaps the vindication of copyrights should no longer be the provenance of the court system. Courts, like creative works, are the product of human invention (for now); as such they are inherently slower than computers. Until computers can decide a case from complaint to judgment without human intervention, this will always be the state of affairs. To achieve liberty (i.e. the correct balancing of the values of copyright authorship against the rights of the public) presently requires vindication in a court. But, inherent in that vindication is a weighing of the author’s intended use of the work, each individual user’s subjective privacy expectations, and the user’s intended use of the work. It is utterly implausible to saddle a single judge, already juggling a large caseload, with that task; under such considerations one case may not be possible to adjudge in a human lifetime.

Instead, distributed, open source code may be the answer. If it is determined to be a worthwhile pursuit, this paper argues distributed code is the best method to overhaul the copyright registration system. By authenticating and registering works upon their creation, authors can imbue their creations with Smart IP Rights. Code can grant digital assets Smart IP Rights, digital agents for both the author and the user can negotiate on behalf of their human counterparts about the value of those assets, and the agents can almost instantly achieve protections and liberty fundamentally at stake in copyright law. Therefore, as Lawrence Lessig argued, the code can be a form of law, and as such, it can vindicate the rights now sought through the court system.

Implementing code to achieve the vindication of copyrights is a tricky endeavor. This code will have consequences—even unintended ones. Among these consequences are the privacy rights challenged by such a system and the rights of intelligent autonomous systems utilizing artificial intelligence. On balance, these consequences may be of little concern, depending on how the technology behind the Registration System 2.0 affects these discussions.

The great American jurist Learned Hand said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes.”[110] Hand was referring to the notion of “liberty” in this quote. Because liberty is an amorphous term subject to temporal and contextual interpretations, I argue it is applicable to copyright. The Freedoms enshrined in the First Amendment to the Constitution are appropriately categorized as values falling within the definition of “liberty,” and I have argued those Freedoms’ keystone component is copyright. Therefore, as two sides of the same coin, copyright should be construed as a value also falling within the definition of liberty. Hand’s quote continues, “[l]iberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it…”[111] I have argued that the value found in copyright is dually subjective and collective. If that value is lost by either measure, then courts may be powerless to retrieve it.

We should turn–indeed we must turn–to trusted systems. Should a Smart IP Rights system be implemented, then it is possible that Hand’s quote may be framed as a positive premonition about the future of copyright law in a post-Internet world. In such a future liberty could be vindicated not in a court, but in every computer. In such a future we may, collectively, turn away from the feudal notions of monopolistic, contractual ownership present in the current copyright system implementation and turn instead to a better system that implements the proper balance of values intended by the Framers.

[1] See, Elizabeth L. Eisenstein, The Printing Press as an Agent of Change, 3 (1980); see also William F. Patry, Patry on Copyright, §1:5 England and the Statute of Anne; overview (March 2019 Update).

[2] Eisenstein, supra note 1 at 3 (1980).

[3] Id. (quoting St. John, The American J. of Sociology, 255).

[4] Id. at 4.

[5] See Lawrence Lessig, Code and Other Laws of Cyberspace 133 (1999).

[6] William Patry, for example, argues that in addition to common foundational structures among copyright laws, the “theoretical basis for copyright is also subject to dispute.” Patry, Patry on Copyright, §1:1.

[7] See Isabella Alexander, All change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century, 25 Berkeley Tech. L. J. 1351, 1354-56 (2010).

[8] “A resource suffers the tragedy of the commons when it is prone to overuse because too many owners have a right to use the resource and no one has the right to exclude any other.” Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 Cal. L. Rev. 439, 509 (Mar. 2003).

[9] The etymology of cyberspace stems from “cybernetics,” the study of control at a distance. Lessig, supra note 5, at 5.

[10] See Hunter, supra note 8.

[11] Id.

[12] Creative Commons helps users share knowledge and creativity by providing free, easy to use copyright licenses. https://creativecommons.org/about/.

[13] This is to say that Creative Commons addresses some of the problems created by the normative use of works and the various laws—both copyright and contract—which regulate those works.

[14] See 17 U.S.C. § 412 (requiring registration with the United States Copyright Office prior to filing an infringement suit).

[15] Mr. Rabay is a Professor at the Centro Universitario de Joao Pessoa and operates a law firm in Brazil.

[16] See Part II., infra.

[17] See Part III., infra.

[18] Eisenstein, supra note 1, at 43.

[19] This is not to say manuscripts and the circulation of information through them were non-existent. In fact, about 10,000 copyists were employed in France when the printing press was invented. Their labor, however, had little influence on the development of the rights allocated between authors and copyists. Thousands of these copyists were responsible for copying St. Augustine’s “City of God.” It was one of the most popular books in Europe, copied for years. But St. Augustine had neither heard of copyright nor received any royalties for those copies. See Augustine Birrell, Seven Lectures on the Law and History of Copyright in Books 47–48 (1899); see also Augustine Birrell, A Few Words About Copyright in Books (1905), reprinted in The Collected Essays and Addresses of Augustine Birrell, 1880 to 1920 at 96 (Kessinger reprint 2005).

[20] Eisenstein, supra note 1, at 43.

[21] For example, the first recorded copyright dispute arose between two Irish monks, Finnian of Moville in County Down and Columba. Columba allegedly copied Finnian’s Psalter which was the oldest Irish manuscript existing at the time. The Irish King Diarmed is said to have mediated the dispute between the two in the 560’s. His judgment declared “to every cow her calf and to every book its copy.” This adverse judgment did not settle well with Columba. As a result the first, and to date, only, physical battle over copyright dispute erupted: “Cul Dremhe” (The Battle of the Books). Finnian and Columba were later canonized, despite the fact their battle left many men dead. Patry on Copyright, § 1:5. England and the Statute of Anne; overview, at n.1.

[22] John Feather, A History of British Publishing (2d ed. 2006).

[23] See generally Cyndia Clegg, Press Censorship in Elizabethan England (1977).

[24] Read: Protestant teachings. Oren Bracha, The History of Anglo-American Intellectual Property Law, 133 (SJD Dissertation, Harvard University 2005).

[25] Feather, supra note 22. The establishment of the Stationers’ Company was also an effort to control the spread of Protestantism. Id.

[26] John Feather, Authors, Publishers and Politicians: The History of Copyright and the Book Trade, 10 Eur. Intell. Prop. Rev. 377 (1988).

[27] See History of the Bodleian, available at https://www.bodleian.ox.ac.uk/about/history.

[28] The Stationers derived their power from licenses that were passed as acts of Parliament.

[29] Joseph Loewenstein, Ben Jonson and Possessive Authorship 6 (2002).

[30] See Lisa Pon, Raphael, Dürer, and Marcantonio Raimondi: Copying and the Italian Renaissance Print 43 (2004): “Although privileges and copyrights have often been equated in the scholarly literature, it is important to note the difference between Renaissance privileges and modern copyright. Anglo-American copyright is a right of an author, based on the notion of the author as originator of his or her work. In contrast, as the name implies, a privilege was a favor, bestowed by a governmental authority on any individual it felt to be worthy of distinction. That individual … was often neither the author of a text nor the inventor of an image.”

[31] Alexander, supra note 7, at 1356-57.

[32] See id. at 1357.

[33] Id. at 1359.

[34] Id.

[35] Id.

[36] See generally, Landes & Posner, The Economic Structure of Intellectual Property Law (2003).

[37] Id. at 5 (emphasis original).

[38] Efficiently is used here as it is understood in the economic context, which hopefully the good Judge will appreciate and thus be inclined to forgive the liberty taken by my extension of his quotation.

[39] Loewenstein, The Author’s Due: Printing and the Prehistory of Copyright 22 (2002) (emphasis original).

[40] Some argue that the Statute of Anne did not apply to the American colonies. Moreover, the Articles of Confederation contained no protection for printed works. Colonists relied instead on colonial legislatures for early copyright protection. But, colonial legislatures tended to prioritize the needs of other aspects of agrarian society over the rights of printers and cartographers. Peter K. Yu, Intellectual Property and Information Wealth: Issues and Practices in the Digital Age 142 (2007).

[41] “The Congress shall have power… [t]o promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Const. Article I., Section 8, cl. 8.

[42] “You know when you look at drafts of the Bill of Rights the first amendment [sic] has been through a few different iterations but I think the reason that the framers decided to put those five freedoms together in that amendment is that there are all freedoms of expression and also the founders saw all of these things all of these forms of expression as necessary for good governance for being good citizens in a functioning democracy.” (emphasis added) Lata Nott, Executive Director of the Newseum Institute’s First Amendment Center, Civics 101 Podcast, Episode 56, Transcript, available at https://www.civics101podcast.org/civics-101-episodes/ep56.

[43] Id.

[44] Id.

[45] “Congress shall make no law … abridging the freedom of speech….” U.S. Const. amend. I

[46] See 17 U.S.C. § 106.

[47] Copyright protects the expression of an idea, as opposed to the idea itself. But, the right to create derivative works from the original expression belongs to the author. 17 U.S.C. § 106(2).

[48] “Congress shall make no law … abridging … the right of the people peaceably to assemble….” U.S. Const. amend. I.

[49] Originality is the sin qua non of copyright protection. Feist Publ'ns v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). Cf. Samson Vermont, The Sine Qua Non of Copyright is Uniqueness, Not Originality, 20 Tex. Intell. Prop. L.J. 327, 349 (distinguishing between originality and uniqueness: “copyright does not protect a work insofar as it will inevitably resemble other works”; “no formal test [for novelty] is needed so long as copyright only protects works very likely to be novel”).

[50] “Congress shall make no law … abridging the freedom … of the press ….” U.S. Const. amend. I.

[51] “Congress shall make no law … abridging the freedom … of the right of the people peaceably … to petition the Government for a redress of grievances.” U.S. Const. amend. I.

[52] When George Washington signed the Copyright Act of 1790 into law, the Senate responded “[l]iterature and science are essential to the preservation of a free constitution; the measures of government should, therefore, be calculated to strengthen the confidence that is due to that important truth.” Patry, Copyright Law and Practice (2000), https://digital-law-online.info/patry/patry5.html.

[53] See Freedom of Speech, supra at note 45.

[54] See Posner & Landes, supra at note 36; cf. Posner, Do patent and copyright law restrict competition and creativity excessively?, https://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html (Sept. 30, 2012).

[55] Copyright Act of 1790 originally placed a fourteen year limit on copyright protection; see also 17 U.S.C. § 302.

[56] See Eisenstein, supra at note 1.

[57] Computer Science and Telecommunications Board, Trust in Cyberspace 29-33 (1999).

[58] Dep’t for Culture, Media & Sport, Digital Britain Final Report, 3, available at https:// www.culture.gov.uk/images/publications/digitalbritain-final-report-jun09.pdf.

[59] Alexander, supra at note 7.

[60] This capacity is thanks in part to its architecture and design. The Internet is largely made up of hosts who send packets of information through a system of routers which all communicate using a shared suite of protocols. These protocols are tolerant to network outages and are designed to be compatible with many systems. Computer Science and Telecommunications Board, supra at note 57.

[61] The Open Systems Interconnection Model is a tool used by information technology professionals to understand how information flows through the Internet. One of the seven layers of the model, the Physical Layer, defines how physical changes in electrical voltages are interpreted into signals then, ultimately, translated into the data packets which are sent across the Internet. See Richard E. Smith, Internet Cryptography, 9-10 (1997).

[62] For example, the same panel of judges on the Ninth Circuit Court of Appeals found, on the same day, that you can resell your music disc on eBay (UMG Recordings v. Augusto, 628 F.3d 1175), but you cannot sell a used disc containing software on eBay (Vernor v. Autodesk, Inc., 621 F.3d 1102). Joshua A.T. Fairfield, Owned: Property, Privacy, and the New Digital Serfdom 24 (2017).

[63] See Joshua A.T. Fairfield, Owned: Property, Privacy, and the New Digital Serfdom 16 (2017). See also Bruce Brown, Lowe’s is shutting down its Iris smart home platform, offering customers refunds, Digital Trends (Jan. 31, 2019 11:05 A.M.) (reporting that Iris platform users would lose the ability to operate their smart home devices compatible only with the Iris services).

[64] See Lessig, supra at note 5, at 125-27.

[65] This report was the precursor to Congress’ passage of the Digital Millennium Copyright Act. Bruce Lehman, Intellectual Property and the National Information Infrastructure, The Report of the Working Group on Intellectual Property Rights, USPTO (1995).

[66] See Lessig, supra at note 5, at 125-27.

[67] About the Licenses, Creative Commons, available at https://creativecommons.org/licenses/.

[68] Id.

[69] See Lessig, supra at note 5, at 127 (arguing the problems of control on the Internet will stem from copy-rights and on copy-duty – or the duty of owners to make their works accessible).

[70] See generally, Fairfield, supra at note 63.

[71] Id. at 5-8.

[72] Id. at 7.

[73] Id. at 19-20.

[74] Lessig, supra at note 5, at 127; see also Posner, Do patent and copyright law restrict competition and creativity excessively?, https://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html (Sept. 30, 2012).

[75] See, Posner, Do patent and copyright law restrict competition and creativity excessively?, https://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-law-restrict-competition-and-creativity-excessively-posner.html (Sept. 30, 2012) (Posner was the Chief Judge of the Seventh Circuit from 1981 to 2017); cf. ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)(Easterbrook, J.)(expanding copyright owners ability to control digital works by holding two parties’ contract, created through a “shrinkwrap license,” may create certain binding obligations although that work may not be protected by copyright law).

[76] John Perry Barlow, largely recognized as one of the brightest luminaries in the development of the Internet, said “copyright and patent law was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry.” Barlow, The Economy of Ideas, Wired 85 (Mar. 1994).

[77] Maps and charts were also included in the Copyright Act of 1790. Patry, Copyright Law and Practice, available at https://digital-law-online.info/patry/patry5.html.

[78] See Loewenstein, supra note 39.

[79] Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 Minn. L. Rev. 129, 133 (1998).

[80] Id.

[81] Id. at 139.

[82] Lessig, supra at note 5, at 127-30.

[83] See Shahla Hazratjee, Bitcoin: The Trade of Digital Signatures, 41 T. Marshall L. Rev. 55, 83 (2016). These tokens can power decentralized applications, granting a token owner with certain rights in relation to the application and represent an entirely new sort of digital property. Thijs Maas, Understanding Ethereum — a full guide, Medium (Oct. 4, 2017), available at https://hackernoon.com/understanding-ethereum-a-complete-guide-6f32ea8f5888

[84] Fairfield, BitProperty, 88 S. Cal L. Rev. 805, 807 (2015).

[85] Fairfield, supra note 63, at 165.

[86] Don Tapscott & Alex Tapscott, Blockchain Revolution: How the Technology Behind Bitcoin Is Changing Money, Business, and the World 6 (2016). A network is decentralized where there is a large, diverse group of individuals with distinct motivations. Peter Van Valkenburgh, Framework for Securities Regulation of Cryptocurrencies, Coin Center, 36 (January 2016).

[87] Trusted systems are said to be disintermediated and lack a central authority. See, Isaac Pflaum & Emmeline Hateley, A Bit of a Problem: National and Extraterritorial Regulation of Virtual Currency in the Age of Financial Disintermediation, 45 Geo. J. Int'l L. 1169, 1174-76 (2014).

[88] Tapscott & Tapscott, supra note 86, at 6-7.

[89] See Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System 2 (2008), available at https://bitcoin.org/bitcoin.pdf (describing a system to exchange valuable digital tokens between pseudoanonymous parties).

[90] See Nakamoto, supra note 89, at 2; but see U.S. Securities and Exchange Comm’n, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO 1 (2017) (investigating the securities aspect of a firm operating on a trusted system that was hacked and users’ access to valuable digital tokens was lost).

[91] See generally Samuel Bourque & Sara Fung Ling Tsui, A Lawyer’s Introduction to Smart Contracts, Scientia Nobilitat Reviewed Legal Studies (2014). “Like other blockchain-based technologies, the smart contract is designed to function without reliance on a centralized authority.” Karen E.C. Levy, Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law, Engaging Science, Technology, and Society 2 (2017).

[92] See generally https://digiconomist.net/bitcoin-energy-consumption (tracking the energy usage of the individual computers operating the Bitcoin blockchain compared to entire countries).

[93] Tapscott & Tapscott, supra note 86, at 278.

[94] See Lessig, supra at note 5, at 127 (discussing the notion of authors’ copy-duty).

[95] This functionality mirrors the authors’ right to terminate licenses found in U.S. copyright law. See 17 U.S.C. §203.

[96] Smart contracts offer novel features like the transparency of an agreement and its execution, independent execution without the parties, and automation of the agreement’s obligations. Bourque & Tsui, supra note 91, at 6.

[97] Specifically, it would assign it to the “hash” of that file, so the system does not need to track each exchange of the file to prove authenticity or originality, but instead tracks all files on the registry and their renderings on the Internet simultaneously.

[98] Lessig, supra at note 5, at 129.

[99] U.S. Const. article I, section 8, clause 8.

[100] “The code is a regulator, and the government has a greater interest in the code that regulates better than others.” Lessig, supra at note 5, at 21.

[101] See Lessig, supra at note 5, at 141.

[102] There are two important choices to be made: one is should intellectual property be propertized through use of trusted systems, and the second is whether we should allow this regime to eliminate the latent anonymity in less efficient architectures of control. Lessig, supra at note 5, at 140.

[103] See Shawn S. Amuial, Josias N. Dewey, & Jeffrey R. Seul, The Blockchain: A Guide for Legal & Business Professionals §§ 5:2, 5:3 (Oct. 2016).

[104] See Id. at § 5:2.

[105] See Nakamoto, supra note 89.

[106] Smith, supra note 61, at 197-98.

[107] For example, a Google engineer created Deep Dream Generator which is a convolutional neural network (a form of artificial intelligence) to create hallucinogenic dream-like images which are quite expressive, to say the least. See Deep Dream Generator, available at https://deepdreamgenerator.com/.

[108] Bourque & Tsui, supra note 91.

[109] Levy, supra note 91, at 3.

[110] Learned Hand, “I Am an American Day” ceremony, New York (May 21, 1944).

[111] Id.