Vol 7 No 1 - Roger Williams University School of Law

the new environment.For example, the latest version of a popular software productcontains technological or coded restraints that make it verydifficult to copy and load the software on to a second machine.This technological constraint is designed to enforce copyright inthe software. Likewise, DVDs are distributed with anti-copyingCSS encryption, which will only allow them to be accessed throughan authorised player. Some fear that coded restraints couldbecome a law unto themselves and slant protection too far infavour of the property holder.The Reimerdes case highlights the notion of “code as law.”376The thrust of Lessig’s argument, in contrast to that of early digitallibertarians, was that governments should regulate cyberspace tocounteract the negative effects of code.377 He argued that thepublic values inserted into everyday life by legislation and thecommon law (for example the fair use doctrine in copyright law),were at risk in a code based world where private corporationsregulated activity according to their private values.378 The worldof code needed to be infused with public values through law. TheDMCA, in essence, does the opposite, in that it is a law that hasbeen enacted to preserve the power of the code by prohibitingpeople from breaking through or cracking code. In Lessig’sschema, there should now be another law that sits on top of theDMCA that inserts values into the system.Imagine a world where an informational product can bedistributed to the consumer in a way that copying of and access tothe informational product can be severely restricted. Imagine aworld in which chapters of a book can be downloaded or streamed,but not printed or copied. In this type of scenario, or “pay-perview”world, encryption will be used as the technologicalmechanism for limiting use of informational products. A largenumber of people are concerned that such a state of affairs wouldlead to the demise of our current fair use rights to copy a chapterof a book or to read a book in a library. It could be argued that weshould jettison fair use rights and reconceptualize the way publicinterest will be served in a world of code. Perhaps things mightwork better without fair use and that holding on to such a376. See id.377. See id.378. See id.