Round Two: Response
All of my copanelists' remarks intrigued and puzzled me. Naturally, in such a brief space they could not spell everything out. Here, I'd like to ask some questions that I hope will give them the chance.
To John Perry Barlow (I proceed alphabetically): You remark that copyright applies to tangible objects like "compact disks, film strips, photographic negatives, lithographs, sheets of paper, and a host of other collections of atoms one might touch." These -- if I understand you correctly -- deserve copyright, but only to protect the investment of the publisher in equipment, storage, shipping, and so on. Because computers and the Internet have greatly lowered the cost of presenting and transporting words and images, the justification for copyright fails; freed from the necessity of dealing with publishers, writers and artists will deal directly with the public, which after all is who they should be trying to reach.
From Post & Riposte:
"IP law does not need rewriting. In fact, culture could be enhanced by running further with the the 'publishing' analogy for the Net and Web: Some of us are trying to build an Internet Library and an Internet Archive to put some organization and permanence into this currently transient medium. If all is licensed, then we cannot necessarily keep what was published before and accountability goes away. Libraries and archives have been people's approach before, let's not make them illegal in this new world."
--Brewster Kahle, 9/17/98
"Seems obvious, particularly with China (and surely soon other national entities) turning a blind eye to pirated digitals, that police enforcement will be selective, capricious, and almost totally ineffective, except perhaps for causing an increase in the budgets of various government agencies. I tend to favor the approach which understands that digitalized data cannot be limited and suppressed from copying by power of government edict. Data mining should not be made into another smuggler's paradise."
--Mir 3, 9/14/98
"Charles Mann, for all his research and documentation, missed one very important factor in the debate over Intellectual Property on the Internet. While much was made of the fact that the Internet will lower distribution costs, nothing was said about the fact that promotional costs rise drastically.... No author, or to use current terminology, 'content developer,' can gain more than a nominal audience of family and friends unless their work is promoted. No electronic publisher will promote that which they do not own. Without these [copyright] protections, we would indeed return to post-revolutionary France and electronic chaff [would] drive information from the market."
--Wesley Rolley, 9/6/98
"I would posit that what we need is to parse intellectual-property rights differently -- and more in line with the vision of the Founders and the early laws in the area. Durational limits are one area of needed change.... Now, as Mr. Mann notes, Congress is seriously debating a term of the life of the author plus 70 years (95 years for corporate works). This will mean that few, if any, persons born today, and many of their children, will ever be able to freely copy a recently created work during their lifetimes, even if that work is largely an arrangement of facts. These extensions of the term of copyright do not, in my mind, jibe with the 'limited times' envisioned for protection of copyright by the drafters of the Constitution."
--Paul Kilmer, 9/15/98
Questions immediately come to mind. The video and audio tapes cluttering my office shelves are tangible objects. Their intellectual contents are stored in the form of tiny magnetic oxide particles, which are then electronically translated into zeroes and ones and presented in the form of vibrating molecules of air or glowing pixels. I don't understand how this differs in terms of tangibility from the material on the Net, which consists of magnetic oxide particles stored on computer hard drives and then translated into pixels and sound. Why isn't the information on the Net tangible, too? It's out of sight, but then so is the VCR in a hotel's central office that plays movies in the rooms.
To Larry Lessig: You share the concerns of those who worry that technology of the sort Mark Stefik is working on would give "copyright holders the power to control access and use, the power to disable fair uses, and the ability to keep control of their material for much longer than the statutory life." As Stefik points out, this view apparently depends on the belief that contract law can supersede copyright law. Is there, in fact, any good reason to believe this? As I understand it, the Copyright Act, a federal law, explicitly preempts state-law causes of action that are equivalent to copyright-infringement claims. Would contracts that eliminate fair use run afoul of this provision? More specifically, I know that in 1996, Frank Easterbrook, a conservative judge in the 7th Circuit, apparently decided in ProCD v. Zeidenberg that contracts could ban actions that would normally be permitted as fair use by copyright law. Is this a judicial oddity that nobody should worry about or a harbinger of things to come?
To Mark Stefik: You suggest two possible answers to the concerns of Prof. Lessig. The first answer is that the market wouldn't permit publishers to control their works unfairly. As publishers themselves point out, if Scribner's tries to recoup its big advance to Stephen King by telling readers that they can read his latest book only once and cannot lend it to friends, they will buy the new Clive Barker from HarperCollins instead. What puzzles me about this argument is that the software companies clearly don't believe it -- if anything, they are demanding even more power over their stuff than before. And the software companies, after all, have more experience selling zeroes and ones than anyone else. Why does the market permit LucasArts and Corbis to claim rights on their games and photographs which publishers will not be able to claim on electronic books?
Finally, a question to all. One of the underlying confusions in this arena has to do with the way that digital technology is conflating previously separate modes of intellectual production. Today, anyone can go into a bookstore and flip through every paperback on the shelf. But they cannot generally walk into a music store and listen to a few tunes. And nobody can march into a theater multiplex and catch a few minutes of each picture. As Barlow has noted elsewhere, each type of work has its own methods of distribution. In the future, it is believed, all will be transformed into digital signals and flushed down the wire into the home. The result is that we are attempting to create a single set of economic and legal institutions for phenomena that today are quite distinct. Is there any hope of maintaining these distinctions in a way that doesn't either invite public confusion or invidious cheating by either publishers or consumers?
Introduction by Charles C. Mann
Round One: Opening Remarks -- posted on September 10, 1998
Charles C. Mann is a contributing editor of The Atlantic Monthly and the author, most recently, of @ Large (1997), written with David Freedman. His article, "Who Will Own Your Next Good Idea?", is The Atlantic's September cover story.
Copyright © 1998 by The Atlantic Monthly Company. All rights reserved.