copyrighted material. In the language of modern law and economics, these
rules protect authors through a "liability rule" rather than a "property
rule."[7-21] They are perfect instances of the special character of copyright's
protection, as they represent the aim to give authors not perfect control of
their copyrighted work, but a balanced right that does what the Constitution
requires -- "promote progress."

Thus, while Congress has expanded the scope of rights protected by the
Copyright Clause, as technologies have changed, it has balanced the rights
of access against these increases in protection. These balances, however, are
not, on balance, even: though limits have been drawn, the net effect is in-
creased control. The unavoidable conclusion about changes in the scope of
copyright's protections is that the extent of "free content" -- meaning con-
tent that is not controlled by an exclusive right -- has never been as limited
as it is today. More content is controlled by law today than ever in our
past. In addition to limited compulsory rights, an author is free to take from
work published before 1923; is free to take noncreative work (facts) when-
ever published; and is free to use, consistent with fair use, a limited degree
of others' work. Beyond that, however, the content of our culture is con-
trolled by an ever-expanding scope of copyright.

/tab\/tab\PHYSICAL/tab\/tab\

At the content layer, I've argued, the law aims to strike a balance between
access and control. Copyrights grant control, but copyrights are constitu-
tionally and statutorily limited to ensure some uncontrolled access. Some
parts are controlled; some parts remain free.

No such balance exists at the physical layer, and for the most part, that's
a good thing, too. Writing is produced and published on paper; paper is a
physical good; in our economy, physical goods are fully controlled by the
market. Films require film stock; nondigital film stock is extremely expen-
sive; no right to steal this physical stock exists in our society. Market control
is the rule at the physical layer; access is at the pleasure of the property
owner.

This control is largely benign, at least where markets are competitive.

If the market is not competitive, then power at the physical layer can be-
come harmful. Control at the physical layer can, in at least some contexts,
be leveraged into another layer.[7-22] But for this danger, antitrust law is an ade-
quate remedy. As long as the other layers remain relatively free, the control
here is not inherently troubling.

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