My week guest-blogging here at Crescat comes today to a close. There is obviously much more to say, and much more on which I would love to get your feedback. In the meantime, anyone interested in reading more on self-help should feel free to email me. I am -- suprise? -- working on a paper related to all this, and I would be happy to share the current draft.

In true Chicago style, however, let us end our conversation here with a little more substance: specifically some further thoughts on self-help and copyright.

My copyright post this weekend focused on self-help technologies that allow copyright holders to assert greater control over their work. I want to turn now to the opposing self-help technologies through which college students and other ordinary consumers are themselves shifting legal boundaries, specifically by engaging in the unauthorized duplication and dissemination of copyrighted work online. Copyright law has had a hard time discouraging illegal activities of this sort, the primary reason being that the large number of bad actors makes normal legal process prohibitively expensive. The law could in theory still deter either by significantly increasing the penalties associated with these illegal acts, or by finding some strategy to lower the cost of bringing each individual case. Neither approach, however, holds great promise.

With respect to increased penalties, current penalties for copyright infringement are already quite steep, with statutory damages clocking in at anywhere from $750 to $30,000 per work copied, and criminal prosecution a real possibility thanks to renewed interest from the Department of Justice. A college student with a modest collection of illegal music is therefore already being threatened with a possible punishment on the order of five years in jail and well over $500,000 in cash damages. It is hard to imagine credibly threatening higher penalties for this category of legal wrong; and, even now, nearly every case settles for a tiny fraction of the maximum possible penalty, presumably because both the government and the copyright industry feel constrained by the possibility of negative publicity.

Meanwhile, although the idea of lowering the costs of legal process resonates in the abstract, in practice none of the plans proposed thus far show much promise. For example, over a several month period in 2003, the Recording Industry Association of America experimented with a streamlined court process wherein copyright holders would present circumstantial evidence of online infringement to a court clerk and, in response, the clerk would issue a subpoena ordering the relevant Internet service provider to reveal the name and address of the accused infringer. The process was designed to avoid the expense of conducting a full hearing before issuing a subpoena; in particular, it cut corners by relying on a court clerk rather than a judge, and by not offering accused parties the opportunity to defend their anonymity through counsel. The procedure was roundly criticized for fear that it would be too easily abused. The worries included somewhat outlandish concerns that stalkers, pedophiles, and the like would masquerade as injured copyright holders in order to discover the names and addresses of previously anonymous targets; but they also included more plausible privacy and due process concerns over a streamlined process that unmasked anonymous parties without giving them any chance to anonymously resist. The merits here were never adjudicated; the D.C. Circuit killed the program on the ground that it was not authorized by statute.

Where deterrence at the individual level cannot work, the typical response is to regulate or in other ways hold accountable parties that facilitate the illegal practice. Copyright holders have obviously attempted that strategy, perhaps most notably through high-profile litigation against Internet startups Napster, Aimster, and Grokster. Much has already been written on these particular cases, as well as on the general issues they raise, and I will therefore keep my remarks on this topic short. I want to emphasize, however, that these are difficult cases because the technologies at issue are capable of both legitimate and illegitimate use. That is important as a matter of copyright doctrine—a decade ago, the Supreme Court found manufacturers of video cassette recorders to be immune from copyright liability primarily on the ground that VCRs are “capable of substantial noninfringing uses” —and as a matter of policy as well, in that courts when faced with dual-use technologies must be careful not to regulate in a way that unnecessarily discards the wheat with the chaff. At the same time, caution should not be allowed to morph into paralysis, especially in instances where small modifications to the relevant technology could reduce the number of illegitimate acts without substantially interfering with legitimate ones, or substantially altering the core underlying technological accomplishment.

Let me unpack those concerns just slightly further. In Sony Corporation of America vs. Universal City Studios, Inc., the Supreme Court held that “the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” Bill Landes and I have criticized this holding along two dimensions. First, read literally, it fails to account for the costs and benefits of the technology at issue, excusing from liability even a product for which expected harms fully overwhelm expected benefits. There are admittedly reasons not to engage in too careful a cost/benefit balance. It might be difficult for a court to predict future uses of a new technology; and some harmful uses ought not count given that they can be better addressed through other forms of intervention, such as direct litigation against the relevant bad actors and self-help. However, on its face, the Sony rule requires no balancing at all; and, if that reading is correct, it seems an unduly paranoid approach.

Second, the Sony rule creates no incentive for firms to try to better protect copyright. Instead, it offers blanket immunity the moment a firm can demonstrate sufficient legitimate use, completely ignoring any possibility that the firm could have done better. An analogous approach in criminal law would be to announce that anyone who does two good deeds in the morning is free to commit any number of bad acts in the afternoon. Such a rule is ridiculous because it does nothing to discourage afternoon malfeasance; but the Sony rule does exactly that with respect to infringement. Again, there are admittedly reasons not to be too aggressive in terms of allowing courts to micro-manage the development of new technologies. The Sony rule, however, has been read to contemplate no court evaluation at all. Just as courts are able to evaluate the complicated technology issues that arise in the context of the patent system, and courts are able to evaluate questions of product design in the context of products liability litigation, courts working in the copyright setting could be expected to evaluate whether technology firms were (say) reckless in their failure to adopt additional copyright protections. This is therefore a second dimension along which a literal reading of the Sony rule would be overly cautious.

Issues left unresolved in Sony raise similar complexities. Consider, for example, the question of which legitimate uses should count as “substantial noninfringing uses” for the purposes of the Sony balance. In my view, a use should count only if it is both lawful and sincere, which is to say that the use is both technically permissible as a matter of law, and also a use for which the technology at issue has plausible charm. Grokster could in theory be used to disseminate copies of the Bible. That would be lawful, as there is no copyright in the Bible, but not sincere, in that there are so many equally good ways to acquire a copy of the Bible—websites that post free copies online, religious institutions in every community that offer free copies in print, hotel rooms where the Bible can routinely be found in a drawer—that there is little reason to defend the ability to acquire a copy through Grokster per se. Grokster similarly cannot be defended on the argument that peer-to-peer file sharing helps strangers recommend new music one to another, because suggestions could be made without actually offering the music files at the same time. Nor can KaZaA be defended as a mechanism for new artists to introduce their work, given that free centralized websites—like the old mp3.com —can easily be used as centralized repositories for music that is willingly being placed in the public domain. Phrased another way, a legitimate use must be evaluated in light of plausible alternative means to accomplish the same end result. This is an important detail left unmentioned in the Sony decision, and a detail that the appellate courts seem also to have thus far overlooked.

As for still other responses to the various self-help technologies that facilitate consumer infringement, federal law offers a potpourri of approaches. One provision of the Digital Millennium Copyright Act encourages Internet service providers to remove allegedly infringing content by immunizing service providers from liability for wrongful removals made in good faith. Another provision immunizes from copyright liability search engines like Google and Internet intermediaries like eBay, but only on the condition that they act expeditiously to remove infringing content from their sites the moment they are made aware of its existence. Yet another forbids any firm from manufacturing, importing, or in other ways offering to the public any technology that is primarily designed to break an encryption scheme that would otherwise protect copyrighted work from unauthorized distribution. Even the Federal Communications Commission has tried its hand at protecting copyrighted work; the Commission recently promulgated a series of regulations that require manufacturers of television and cable hardware to build into their equipment certain technologies that restrict the unauthorized redistribution of copyrighted television content.

All of these strategies have advantages and drawbacks. What is interesting about them, however, is their sheer diversity. Because consumers have this new ability to assert unilaterally the power to duplicate and distribute copyrighted work online, copyright law has had to fight back by: using immunities to entice various parties to do their part in enforcing the law; banning some technologies even though those technologies might have substantial legitimate uses; and imposing by regulation specific design requirements for the next generation of television equipment. And, because all this is only working so well, there are proposals on the table to do still more—such as permitting copyright holders to engage in otherwise-illegal denial-of-service attacks as a means by which to bring down servers that are distributing copyrighted work illegally, and authorizing copyright holders to unleash self-help computer viruses that would detect and destroy copyrighted music that is being offered for free by unauthorized sources. In short, copyright law—perhaps more than any other field of law—has been and continues to be under enormous pressure to react to self-help measures.

**

Many thanks for reading and writing with me this week.

Regards,

Doug Lichtman
Professor of Law
The University of Chicago
dgl at uchicago.edu

Thirty years ago, the only significant self-help mechanism available to an author who wanted to maintain control of his work was to keep the work confidential. Once a work went public, its author had no choice but to turn to copyright law for any semblance of control over reproduction, dissemination, adaptation, and performance. As a result, authors also had no choice but to accept the constraints that came along with federal rights, constraints like the fair use doctrine, the first sale doctrine, and limitations on the ownership of facts and ideas. This landscape changed significantly, however, with the introduction of “digital rights management” and related mechanisms that allow content owners to opt out of copyright law and instead rely on encryption and monitoring technologies to control access to their work. Encryption and monitoring allow a content owner to package content such that it (say) stops functioning after a predetermined number of uses, or can be accessed only from a specifically licensed geographic location. The implication is not merely that authors can use the technology to expand on copyright law’s default package of rights while rejecting copyright law’s policy-motivated limitations, but also that authors can use it to assert control over phone books, databases, and other subject matter that the copyright system would leave in the public domain.

How much of a change this will turn out to be is admittedly a difficult question.

But three factors suggest that the change might not be particularly severe. First, hackers have thus far been remarkably effective at defeating digital rights management systems, freeing protected content and rendering implausible the fear that every scrap of content will soon be trapped behind lock and key. Put differently, unauthorized duplication and distribution is a far more pressing problem than is digital rights management; that has been true over the last ten years, and seems likely to remain true for the foreseeable future. Second, even at the theoretical extreme, digital rights management can only be so controlling. It is hard to imagine how any technology could stop a person from hearing a song and then (say) later humming it in the shower or creating a humorous parody. Indeed, the Achilles’ heel in every system designed to control access to content is that at some point customers must be able to read, hear, or otherwise experience the purchased information. Whenever that happens, the information is necessarily vulnerable. Third, content producers do not necessarily want air-tight control over their work in any event, and thus there is no reason to expect that content owners will use extreme forms of digital rights management even if they in fact become available. Magazine publishers, for example, likely benefit from the fact that consumers share magazines, passing a given issue from one friend or family member to another. The reason is that sharing in this manner is a less expensive way to distribute magazines than is the next-best alternative: printing, packaging, and shipping another copy. Thus, as long as a publisher can increase the price of an original magazine to compensate for expected patterns of sharing, the publisher has little incentive to thwart the practice. Sharing makes everyone better off, with both publishers and consumers benefiting from the savings made possible through the use of a cheaper distribution channel.

All this is not to dismiss the possibility that digital rights management might someday overstep proper bounds, threatening the host of concessions currently built into federal copyright law and at that point warranting a response. The question would then become how. One option would be to rely on consumers to develop their own counter-measures, answering new encryption technologies with new decryption techniques, and offsetting increased content control with expanded efforts at unauthorized duplication and distribution. The drawbacks to this approach are many, in that the result is an arms race—recall the discussion on point in the previous section—and, besides, there is no reason to believe that this sort of back and forth will yield anything close to an optimal division between rights and restrictions. Another option would be to regulate encryption technologies directly. The federal government has never explicitly regulated the use of encryption technologies domestically, but there have long been export restrictions in place, and law enforcement authorities do from time to time urge that manufacturers be required to build backdoors into otherwise-secure telecommunications equipment so as to facilitate government access under appropriate conditions. Regulation along these lines might be particularly effective in the copyright setting because the encryption at issue would be used in mass market products. Regulations targeting criminal or other unlawful encryption, by contrast, have always been hard to enforce because the relevant products and people were typically underground in any event.

A third and more distinctive response to digital rights management might come through the doctrine of copyright misuse. Copyright misuse is an equitable defense to copyright infringement. It immunizes an infringer from liability in cases where the infringer can show that the relevant copyright holder has, in this or some unrelated interaction, used the relevant copyright “in a manner contrary to public policy.” An example of a copyright holder potentially vulnerable to the defense would be a software firm whose contracts forbid licensees from reverse engineering copyrighted computer code. A court might in response invoke the doctrine of copyright misuse and refuse to enforce the implicated software copyright in any dispute—even one completely unrelated to reverse engineering—until the disfavored practice is stopped and its ramifications on the market undone.

Like any unclean hands doctrine, the principal charm of copyright misuse is that it can be used to discipline self-help behaviors that are difficult to regulate directly. No need to catch a copyright holder actually encrypting his work, or even to wait for a specific dispute involving the encryption scheme per se. Instead, copyright misuse comes into play the moment the relevant copyright holder turns to the courts for help in enforcing any aspect of the implicated copyright. This is also the central limitation on the doctrine: it has no bite as applied to content producers whose self-help options are so appealing that they have no need for copyright. Luckily, however, few copyright holders will fall into that category, given that copyright will maintain its importance with respect to certain classes of violations—say, unauthorized public performance—even if it loses its primacy with respect to others, such as unauthorized duplication and distribution. Concretely, there is no technology that will stop unauthorized bands from recording their own versions of Madonna’s copyrighted tunes, and so even in a world where Madonna can use encryption to protect her recordings from unauthorized distribution, she will still turn to copyright to stop unauthorized emulation by rival singers. Misuse could therefore effectively pressure copyright holders to choose between copyright law and self-help, taking away the option of using both regimes to protect any single copyright-eligible work. The result is less draconian that an absolute prohibition on self-help encryption in that it leaves copyright holders with the option of using self-help instead of law; and it is also easier to enforce, given that courts implement the doctrine simply by declining to act when called upon to do so by a disfavored copyright holder.

First, sincere thanks to the many readers who have been emailing with thoughts, criticisms, and suggestions. I have learned much from the feedback, and will at the end of the week write a post highlighting some of those ideas. For now, though, I want to return to trade secret protection.

Yesterday, my post tried to explain why trade secret law casts self-help as a prerequisite to more formal legal protections; today, I want to consider the inverse question of why, given the possibility of self-help, formal legal protections are available at all. Perhaps the most obvious answer is that in many settings self-help precautions will fall short, failing to protect information that on policy grounds should be protected. That is, it might be difficult to adequately secure a business facility from corporate espionage, and yet a limited ability to maintain secrecy is likely attractive on policy grounds, in that secrecy encourages firms to invest in the development of new and useful information. Trade secret law thus fills an important void, creating that incentive and thereby acting as both a complement to and competitor for patent law.

There is another and more striking answer to the question of why formal legal protections are layered on top of self-help remedies in this setting, however: trade secret law might simply serve to displace particularly wasteful forms of self-help.

That is, in the absence of robust legal protections, a concerned employer might inefficiently subdivide important tasks across employees in the hope of minimizing how much any single employee knows about the firm. An employer might similarly put family members into sensitive positions rather than more qualified job applicants, the assumption being that family members are apt to be more loyal. The employer might even adopt strategies designed to restrict employee mobility (long-term stock options, for example, that vest only after a certain number of years of service) again as a mechanism by which to indirectly maintain control over firm secrets. These are costly, second-best approaches; and if they cannot be easily regulated—and note how hard it would be to determine whether information in a given firm was being inefficiently subdivided across employees, or whether family members were being favored because of their loyalty rather than their qualifications—the best response might be to acknowledge that constraint and offer legal process as a substitute for these effective but wasteful methods.

Avoiding the costs associated with self-help is actually a common justification for legal rules that might on the merits be hard to explain. Patent law certainly benefits from this kind of second-best story, a story where trade secret protection itself plays the role of costly foil. So, too, privacy protections. At first blush, modern law seems overly protective of personal privacy, restricting the disclosure of private facts related to personal finances, sexual orientation, medical conditions, and the like even in instances where public revelation might serve social interests. Imagine, for example, if information about sexual promiscuity and sexual orientation could be acquired and disseminated without fear of legal liability. The former would do much to protect unsuspecting partners from the dangers of STDs, while the latter might significantly de-stigmatize what are still today controversial closet preferences. Yet the law protects these facts—and it arguably does so because, in the absence of protective legal rules, individuals would invest in privacy anyway, and would do so in ways that are more wasteful still. Patients would withhold vital information about their sexual history from doctors; adults discussing personal matters over the phone would speak in tongues; and lovers interrupted in the privacy of their home would on occasion resort to violence. Merits aside, then, privacy law might be attractive simply because it obviates the need for costly self-help measures.

On this general theme of how legal rules can be used to lure parties away from more costly forms of self-help, one special category merits particular attention: the arms race. In E.I. du Pont deNemours & Co. v. Christopher, the chemical firm DuPont was in the process of building a plant at which the firm intended to use its secret but unpatented process for producing methanol. Access to the construction site was protected by fences and security personnel, the purpose being to stop competitors from venturing onto the property and discovering the secret process by inspection. So a cunning competitor instead chartered an airplane to take pictures of the plant from above. DuPont filed suit, and the question before the court was therefore whether this sort of aerial espionage was prohibited under Texas state law. The court noted that DuPont could have protected itself by covering the construction zone with a tarp, but nevertheless sustained the trade secret claim. Explained the court, “To require DuPont to put a roof over the unfinished plant to guard its secret would impose an enormous expense to prevent nothing more than a school boy’s trick.” Thus trade secret law was used to avoid an arms race, with DuPont investing in guards and a fence, competitors procuring airplanes and cameras, DuPont responding with a tarp and perhaps radar detection, competitors returning with (say) heat-sensitive camera technology, and so on and so on.

Arms races like this one are remarkably common, and legal rules are often asked to reign in the resulting waste. As I will argue later tonight, however, that is rarely an easy task.

My first three posts emphasized free speech, using the first amendment to think through what are the two most intuitive statements about the relationship between legal rules and self-help remedies: namely, that the existence of cost-effective self-help remedies often argues against government regulation as a means to accomplish similar ends; and, conversely, that the absence of cost-effective self-help remedies often argues in favor. I want to turn now to trade secret law, and use the legal rules here to consider another type of interaction: legal rules that cast self-help as a prerequisite to formal legal remedies.

Start with some trade secret basics. Although the details vary state by state, trade secret protection is typically extended whenever three conditions are met. First, the information in dispute falls within the subject matter of the law, which under the Uniform Trade Secrets Act means that the information is not generally known and derives some economic value from its secrecy. A customer list is a familiar example. Second, the qualifying information is taken by improper means, which is to say that a rival acquires the secret by engaging in trespass, inducing breach of contract, threatening violence, or otherwise either invading a protected legal interest, or taking some action deemed to fall below acceptable standards of commercial morality. An example in the latter category might be dumpster diving, an act that is in many jurisdictions sufficient to support an allegation under trade secret law, but is not typically in and of itself a tort, trespass, or otherwise illegal act. Third and finally, at the time of the improper taking, the information in dispute is the subject of reasonable precautions to maintain its secrecy. This is a context-sensitive determination that might in one case require the use of a vault to store sensitive papers, while in another case requiring that a particular facility be guarded around the clock.

This last requirement is the one to which I alluded above: it denies a legal remedy to any trade secret holder who has failed to exercise reasonable self-help precautions. This is somewhat unusual. Property owners are not required to erect a fence in order to later sue an unwelcome visitor for trespass. Automobile owners similarly need not prove that they locked their doors or used “the Club” in order to qualify for police assistance in retrieving their stolen cars. Nor must creditors attempt self-help repossession prior to asking a court to transfer property that once served as collateral for a now-defunct loan. Yet, to qualify for trade secret protection, trade secret holders must prove that their secret was unveiled despite reasonable efforts to ensure its secrecy. Why?

One justification is that self-help serves to distinguish the bulk of normal business information from that special subset of information that warrants protection. The idea here is to keep the scope of trade secret protection in check, and relatedly to put competitors on notice regarding what information is and is not available for common use. This is a task that seems unnecessary in the other examples. It is likely efficient to protect every piece of property from basic instances of trespass, to protect every car from unlawful access and use, and to allow every creditor to make good on the threat of taking possession of collateral in the event of a default. But it would be counterproductive to protect every shred of information from unauthorized dissemination, given that a modest flow of information across competitors might stimulate innovation; besides, too restrictive a trade secret regime would impose huge administrative costs as parties would constantly fight over who learned what from whom. This need to narrow and clearly mark that which is eligible for legal protection is thus a somewhat distinctive characteristic of trade secret law as compared to the other examples.

A second justification in the trade secret context is that self-help provides circumstantial evidence that a given trade secret was taken unlawfully. A firm that mixed its secret chemical concoctions in a glass building would be hard pressed to prove that a rival took its secret by improper means. By taking precautions, a firm thus helps to establish at least circumstantial evidence that there was an underlying bad act. There is less need for this sort of evidence, by contrast, in the other examples, in that there will typically be more reliable, physical evidence of a trespass; similarly reliable, physical evidence of automobile theft; and a clear document trail to establish the existence of a loan, the failure to pay that obligation, and the agreed-upon ramifications of that failure. Just to be clear on what this point means: I do not at all mean to imply that circumstantial evidence should suffice to prove a trade secret claim, as there is always the very real possibility that a secret was taken by lawful means, and also the possibility that a protected secret was not taken at all but instead was independently discovered by the accused party. My point here is only that, by requiring precautions, trade secret law removes from contention a category of cases where circumstantial evidence would not be available as even a starting point for the analysis. The law might reasonably conclude that the costs of legal intervention in these precarious cases exceed any expected benefits.

A third and final justification for trade secret law’s reasonable precaution requirement is that such a requirement can be used to pressure firms to engage in self-help where that is the more efficient means by which to protect secret information. This is an intuitive but in my view weak explanation. The problem with it is that, in most instances, private parties would choose the cheaper mechanism even if the law did not so require. No sense in hiring a lawyer when a simple fence will do. In fact, existing private incentives probably explain why most legal rules do not require self-help as a precondition to formal legal process. Property law, for example, could require that every land owner put up a fence as a first barrier to unauthorized trespass; but why bother? Even without any legal obligation, most land owners will install them. Given that, there is no reason to add another variable to trespass litigation by requiring land owners to prove the existence of a fence prior to litigating a trespass. Moreover, in those rare cases where a land owner fails to install a fence, it might be better to leave open the possibility of legal process rather than risking violence by denying the land owner any other remedy.

Of course, there are instances where private parties do not have adequate incentives to engage in efficient self-help, and in those instances the law should and typically does make self-help a prerequisite to legal relief. In tort law, there is some question over whether accident victims would take adequate precautions if the law were to fully compensate them for their injuries in the event of an accident. Thus, in many states, concepts like comparative and contributory negligence operate to reduce or eliminate damage awards in instances where the victim is himself at least partly to blame for his injuries. Such a victim was still wronged, but any damage award is adjusted downward (or, in the case of contributory negligence, completely eliminated) to account for the victim’s own failure to minimize harm through efficient self-help. More generally, the common law in many instances bars an injured party from recovering for injuries that an ordinary, reasonable person in the same situation would have mitigated. The intuition is again the same: an injured party that knows he will be fully compensated for his injuries has little incentive to engage in efficient self-help. That said, these are exceptions to the more common rule: where a party chooses not to attempt self-help, courts understand that there are typically good reasons, as the private incentive to engage in self-help is already quite strong.

I wrote yesterday about the captive audience doctrine and my own view that sometimes captive audiences should remain captive. I want to consider today a related topic: government efforts to facilitate self-help.

Consider, for example, the recently enacted National Do-Not-Call Registry. Before the registry was enacted, telephone subscribers could avoid unwanted calls by using caller ID to screen their calls or by refusing to answer the phone during dinner or other inconvenient times. Lawmakers thought those options insufficient, and so Congress announced that vendors are not to call any phone number listed on the national registry. The registry thus facilitates an interaction that looks a great deal like self-help: homeowners decide for themselves whether to list their number, can themselves grant exceptions in favor of firms in which they have an interest, can themselves choose not to report a firm that calls without permission, and can at any time remove their numbers from the national list entirely. Yet the government does have an obvious role in this example, and the statute that created the list in fact survived constitutional challenge only because the Tenth Circuit rejected as inadequate untainted forms of self-help like the aforementioned option of using caller ID to filter unwanted calls.

Why are courts skeptical of government efforts like these?

As I stressed with respect to the captive audience doctrine, one reason is that government intervention of this form typically reduces the amount and diversity of information received. That might not be desirable, as sometimes a listener should be forced to consider information and confront viewpoints that he would avoid if given the choice. Another reason is that efforts to facilitate self-help almost inevitably turn out to favor certain types of speech over others. The V-Chip, for instance, is a government-facilitated technology that helps parents filter television content. Television manufacturers are required to build the filter into every new model 13 inches or larger; and the filter works by reading ratings that are encoded onto broadcast television signals. Those ratings evaluate each program based on a scale that focuses exclusively on sexual content, language, and violence, and the scale thus makes it easy for parents to filter based on these characteristics. But (and here is the problem) the scale does nothing to help parents filter based on other characteristics, such as religious overtones or political content. The result is that parents who might have previously sat down and helped their children to make educated choices based on a combination of all five factors might now opt for the easier approach of just focusing on the government-facilitated three. To whatever extent that happens—an open question right now given how few families currently use the V-Chip—the government’s facilitation will have skewed content decisions: the importance of the favored characteristics will be amplified at the expense of characteristics not included in the official rating scheme.

Admittedly, there might be reason to allow this sort of skew in certain instances, just as there reasons to in certain instances protect captive audiences. My point is only that the First Amendment should evaluate government efforts to facilitate self-help with a skeptical eye, asking whether the public interest might be better served either by reducing government involvement or by altering it in ways that lessen the skew. Suppose, for example, that the V-Chip were designed not to filter based on three predetermined characteristics, but instead to filter using collaborative filtering techniques. My family would identify fifteen programs that we deem appropriate. The collaborative filter would use those choices to identify other families with similar tastes. Then the filter would use the choices made by those other families to make recommendations to my family, and it would use future choices made by my family to make recommendations to those other families. Never would any of us need to be explicit about what characteristics drive us to disapprove of one program while favoring another. And, rather than being limited to choose based on the government’s three characteristics, our pattern of choices might end up being a complicated balancing of hundreds of different characteristics: namely, ones on which we and like-minded families implicitly agree. The government-imposed skew inherent in the current system would be removed; and the very same First Amendment interest championed by self-help in the classic examples--namely, a sharp reduction in the chance that government regulation will intentionally or inadvertently favor one perspective or subject over another--would at the same time be vindicated.

Comments?

The existence of cost-effective self-help remedies often argues against government regulation as a means to accomplish similar ends; and no where is that more apparent than in the vast jurisprudence that surrounds the First Amendment. On countless occasions, courts have struck down government restrictions on speech for the simple reason that self-help provides a seemingly adequate alternative. Thus, when the city of Los Angeles arrested a war protestor whose jacket bore the now-infamous “Fuck the Draft” inscription, the Supreme Court held the relevant criminal ordinance unconstitutional. Offended viewers, the court explained, have a sufficient self-help remedy in the form of simply averting their eyes. Similarly, in a long line of cases involving speakers caught advocating crime, sabotage, and other forms of violence as a means of achieving political or economic reform, the Court (albeit after a false start or two) again struck down government restrictions, emphasizing that, where there is “time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

I will return in a later post to these cases, and the intuition that, in the context of the First Amendment, the existence of a plausible self-help remedy poses a challenge to the government’s claim that direct intervention is required. But let us start instead with the opposite argument as it is framed in classic First Amendment jurisprudence: where a “captive audience” has no effective self-help mechanism by which to avoid exposure to a given communication, that absence of a plausible self-help mechanism is taken to be an argument in favor of direct government regulation. The point was perhaps most famously made in Cohen v. California, the case I mentioned earlier involving the offensive anti-war jacket. The city of Los Angeles defended the arrest in that case on the ground that, because citizens cannot avoid occasionally coming to the local courthouse for official business, and once in the courthouse cannot avoid being exposed to communications originating around them, the city ought to be allowed to prohibit malicious or willfully disturbing speech within courthouse walls. The argument was ultimately rejected, although in no small part because the statute at issue applied not just to disturbances where that argument has force—such as speech at the courthouse and other confined spaces—but also more broadly to disturbances that would affect the “peace or quiet of any neighborhood or person.” The breadth of the underlying statute thus in this instance made the captive audience argument look more like pretext than bona fide explanation.

The concept of a captive audience has been invoked in many other instances, however, and with varying degrees of success. For example, when the city of Shaker Heights, Ohio, decided to allow advertisements to be displayed inside its public transit system, four Justices emphasized audience captivity as an important factor in justifying a government restriction on the types of advertisements allowed, and a fifth would have gone farther and on this argument banned advertisements entirely. By contrast, when the city of Jacksonville, Florida, enacted an ordinance designed to stop drive-in movie theaters from displaying potentially offensive visuals in instances where the images were visible from the public streets, six Justices gave lip service to the view that the government can selectively “shield the public from some kinds of speech on the ground that they are more offensive than others” in cases where “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure,” but the six then announced that in this particular situation the necessary degree of captivity was not realized because drivers could simply look away.

In the First Amendment setting, then, the existence of a captive audience is, where relevant at all, seen exclusively to argue in favor of government restrictions on speech. That is in my view a mistake. The absence of plausible self-help remedies is not merely a deficiency that the government ought to be allowed to address, but also an opportunity that the government ought not be allowed to without justification squander. After all, we as a society have a strong interest in finding ways to keep one another informed and to ensure that each of us is exposed to a wide variety of conflicting perspectives. We in fact expend significant social resources in pursuit of this goal, tolerating repulsive speech like that which originates with hate groups like the Klu Klux Klan; accommodating protesters even at abortion clinics where their message will inevitably upset already fragile emotions; requiring broadcasters to air programming devoted to education and news even though viewers would strongly prefer other television fare; limiting plausibly efficient industry consolidation in and across the radio, television, and newspaper industries for fear that consolidation might lead to conformity in thought or perspective; and, among many other examples, spending real tax dollars each election cycle to finance political campaigns, with much of that money ironically spent to attract the sort of voter attention that the captive audience would naturally provide.

Against this backdrop, audience captivity has genuine and unappreciated appeal. It promotes exposure to new ideas and does so a way that might be less costly in terms of its associated social harms than are many of the other techniques regularly employed to promote similar ends. It is also not such a departure from conventional free speech tactics. To offer but one example: every four years the government pressures the four major television networks to all simultaneously air the presidential debates. This is wasteful, in that the broadcasts are largely redundant; but there is little public opposition because everyone understands that this is an attempt to create artificial captivity, in this case by eliminating the option of turning away from the presidential debates to watch Major League Baseball or some drama or situational comedy.

My interpretation of the captive audience doctrine would be even less intrusive. It would not empower the government to favor particular content, choosing (say) presidential debates over other content. It would not require that every captive audience be harnessed; the home, for instance, might still be a place where even democratic ideals ought not intrude. It would merely force the government to meet some additional burden before being allowed to restrict speech that would absent intervention reach a captive audience. The absence of self-help would thereby be understood to be what it actually is: an opportunity for society to pressure individuals to do that which they privately disfavor, and to do so without having to account for any costly private adjustments in response.

Comments?

Thanks much for the introduction and opportunity, Will. Much appreciated.

As Will suggests, I am hoping to solicit your thoughts this week on the topic of self-help. I will do so by posting a series of thoughts on the subject -- starting later today with some thoughts on the First Amendment, but through the week drifting across copyright law, trade secret law, patent law, and perhaps also privacy regulation. Along the way, I sincerely welcome your feedback and criticisms. I can be reached via email at dgl at uchicago dot edu.

Perhaps the best place to start is with some examples:

Copyright law is most obviously being reshaped by self-help technologies. At the moment, powerful new tools for content duplication and distribution are challenging the meaning of copyright protection by facilitating massive unauthorized dissemination online. But, tomorrow, advances in encryption technology could easily reverse that trend, empowering authors to control their works to a degree far beyond that which copyright law itself would traditionally recognize. Trademark law similarly sits in the precarious shadow of changing self-help technologies. The most notable examples here are search engines like Google and Yahoo! that today arrogate to themselves what was once the work of the law: namely, matching particular words and symbols to particular sellers and products. Even the First Amendment must continually acknowledge new mechanisms for listener self-help. Twice in the last seven years, the Supreme Court struck down federal Internet indecency statutes on the ground that the government had failed to show that one or another self-help filtering technology was not an equally effective—and hence constitutionally preferred—response.

Not every definition of the term “self-help” would embrace all of these examples. Let me therefore state clearly at the outset that I will use the term this week to mean any unilateral action taken without the assistance of a government official in an effort to defend perceived self-interest. Two features to note about my definition: first, it includes both legal and illegal activity, because I think that the main reason to study self-help is to develop a better understanding of how to draw that line; second, it includes actions taken in support of any perceived self-interest, rather than just those taken in support of some already recognized legal interest, because, as I will argue here, the existence or absence of self-help is often instrumental in determining which interests the law chooses to recognize in the first place.

I hope to use this broad definition to think through and evaluate the various ways that legal rules respond to self-help. My primary purpose is to make clear the rich variety of options available, from supportive approaches that cast self-help as a necessary prerequisite to more formal legal process—think here of trade secret law, which protects secrets only if they were revealed despite reasonable self-help precautions —to less welcoming alternatives, such as a copyright doctrine that might well force authors to choose between encryption and copyright, rather than allowing authors to rely on both to protect the same copyrighted work. However, I hope also to articulate the theories that underlie these diverse legal responses, explaining where they differ, and why a given approach might be attractive in the First Amendment setting but unattractive with respect to copyright, property or patent law.

In the end, in addition to offering some insight along these lines, my various examples are designed to support two basic claims: first, that in almost every setting a private party can engage in self-help—which is to say that a private party can take unilateral action without the involvement of a court or government official to defend what that party perceives to be his own self-interest; and, second, that the law pervasively acknowledges this reality, with virtually every field generating countless specialized statutes and doctrines that are best explained as attempts to harness, control, encourage or deter private opportunities to engage in precisely this sort of behavior.

I will start later today with what might be the most interesting application: self-help in the shadow of the First Amendment.

I'm pleased to report that Professor Douglas Lichtman, from the University of Chicago, will be guest-blogging here throughout the week with some thoughts and requests for feedback on "self help" measures in the law. ("Self help", basically consists of non-governmental actions people take to secure their rights or purported rights, although narrowing the definition can in fact be tricky. This will become more clear when we get down to cases.)

Feel free to send feedback to me (wbaude at crescat sententia dot org) or him.