Return to the Table of Contents.
S E P T E M B E R 1 9 9 8
EHIND the prognostications of the anti-copyrightists is the assumption that we are living in a time of unprecedented change -- a "radically new culture" created by the transition from "atoms to bits," in the words of Nicholas Negroponte, the head of the MIT Media Lab. The economic change wrought by the Internet, according to Kevin Kelley, the executive editor of Wired, is "a tectonic upheaval in our commonwealth, a social shift that reorders our lives more than mere hardware or software ever can." The advent of the Web, Barlow told Harper's, is "the most transforming technological event since the capture of fire."
Economists and historians tend to be exasperated by claims like these. "I do sometimes wonder where they get this stuff," Robert Darnton, a historian at Princeton University, said to me recently. I wondered too. For instance, I asked Richard Saul Wurman about an intriguing assertion -- "A weekday edition of The New York Times contains more information than the average person was likely to come across in a lifetime in seventeenth-century England" -- that appears in extra-large italic letters on the first page of his book Information Anxiety. "I forget where I got that, but I got it someplace," he said of this comparison, which has been repeated more than 200 times in the media since the book was published. "But it's easy to see that it's so. It's obvious."
When I described this exchange to Darnton, he made a noise that was the audible equivalent of hiking up his eyebrows. "Places like pre-revolutionary Paris were just buzzing with all sorts of messages being exchanged through all sorts of media," he said. "It was highly wired, but without the wires." In the excitement of discovering faxes, E-mail, and other new means of transmitting information, we forget that our ancestors used many other media that have now vanished. Among lost ways of knowing, a favorite of Darnton's is the improvised political song that circulated through French cities, spreading the latest news like Baroque-era rap. "Children in the eighteenth century could sing songs about changes in government, royal mistresses, and wars," he said. "Everyone could tell you a dozen political ditties based on one song." Worried about the plague of rhyming information, the government kept militating against the music of the streets. Talk today about the rising amount of information always refers to published documents, not private, irreproducible communications like these French songs. And who lives in a more meaning-saturated context, Darnton wondered: an American surfing through fifty channels of the same official press conference, or a Frenchman encircled by tunefully subversive variants on the day's events from a dozen different sources?
In his books The Literary Underground of the Old Regime and The Forbidden Best-Sellers of Pre-Revolutionary France, Darnton has examined what took place as eighteenth-century France gradually lost the ability to restrict intellectual property -- exactly what the digital pundits see coming today. Before the Revolution, all books, printers, and booksellers had to have a royal stamp of approval, called a "privilege." In return for their lucrative monopoly, the French guild of printers and booksellers helped the police to suppress anything that upset royal sensibilities or ran contrary to their interests. Below the happy privileged few was a mob of underground printers, many across the border in Switzerland, who flooded France with pirated, pornographic, and seditious literature. And below them were the nation's thousands of writers, most at the edge of starvation, trying to persuade underground booksellers to commission a scurrilous pamphlet, a collection of dirty poems, or a tract promoting atheism.
The bread and butter of the outlaws was pirating privileged works, especially best sellers like the novels of Marie-Jeanne Laboras de Mézières Riccoboni, a kind of ancien régime Danielle Steel. "When she put out a new novel," Darnton says, "the pirates bribed workers at the [privileged] presses to give them freshly printed sheets." By cutting books into pieces and resetting each piece on a different press, the pirates often got their wares on the streets at the same time the legitimate edition appeared -- an eighteenth-century version of the instant piracy that today's publishers fear will happen when books are available electronically. Darnton estimates that before the Revolution "about half" the books in France were illegal.
Nobody was happy. Privileged booksellers detested the underground, the underground loathed the privileged booksellers, and the government wanted to quash both the overweening guild and the porno-seditious underground. In 1777 the King threatened the monopoly by reducing the duration of publishers' privileges to the lifetime of the author. After writers died, their works would go into the public domain and anyone could print them. Like the British Stationers' Guild, the French booksellers fought back, cloaking their self-interest in the claim that the decree trampled on authors' rights to own their works. Once a writer sold a book to a publisher, the guild insisted, "No authority can take our property from us and give it to someone else."
The booksellers made this argument in January of 1789, just before Paris was engulfed by insurrection. Seven months later the revolutionary government ended the privilege system. No more restrictions: information was free, and anyone could print anything. The result? "Cultural anarchy," according to Carla Hesse, a historian at the University of California at Berkeley. As Hesse recounts in Publishing and Cultural Politics in Revolutionary Paris, liberation from copyright turned every bookseller into a pirate. Incredibly, identical versions of the same journal came out -- the same headlines and articles printed by different publishers. Trapped by his own advocacy of unfettered speech, Louis Prudhomme, the owner of the newspaper Révolutions de Paris, had no recourse when another Révolutions de Paris appeared. Serious books, which have ever taken longer to sell, were especially vulnerable to piracy, and publishers stopped issuing them. Instead they produced gossipy, libelous pamphlets, which flew off the shelves before anyone could counterfeit them. As for the great texts of the Enlightenment, Hesse writes, "once legalized and freed for all to copy and sell," they "fell out of print."
Enter Marie-Jean-Antoine-Nicolas de Caritat, Marquis de Condorcet. Mathematician, philosopher, education reformer, passionate advocate for science and rationality, Condorcet greeted the Revolution jubilantly despite his aristocratic background. As far back as 1776 he had disputed the notion that authors could own their work. If someone plants a field, Condorcet said, the land can't be used by anyone else; but a writer's words can be used by millions of people without being lost to the originator. Anticipating the visions of digitophiles today, Condorcet limned a utopia in which the citizenry manipulated and circulated information with absolute freedom. Confronted by the reality that lifting all restrictions on literary property had triggered a cultural race for the bottom, the marquis changed his mind. Early in 1790 he proposed giving authors power over their own work lasting until ten years after their deaths. The proposal -- the basis for France's first modern copyright law -- passed in 1793, by which time Condorcet had been purged by the Revolution. He died in prison a year later.
Geoffrey Nunberg, a linguist at Xerox PARC and Stanford University, thinks that what happened in France helps to illustrate, among other things, today's confusion about the word "information." After the Revolution the sum of printed material in Paris soared, but that
In other words, digital technology may put transcripts and video clips of The Jerry Springer Show on thousands of Web sites, but that doesn't increase the world's store of meaning. Condorcet's about-face on the value of unfettered speech suggests that Americans should be careful about allowing the laws of intellectual property to weaken and fail: the debate essential to democracy depends on the national supply of substantive facts, argument, and expression, not the per capita quota of zeroes and ones.
DO not mean to suggest that ephemeral outrages like Jerry Springer are the problem. I'm sure that the hundreds of college students in my town who converge in dormitory lounges to hoot ironically at his show are having an aesthetically complex postmodern experience. The problem in post-privileged France was not the shallowness of what was produced (not that it was cause for joy either) but its homogeneity. Tabloid TV is okay, but not if all TV is tabloid TV. I emphasize this because I want to avoid anti-Web overtones. It doesn't take long on the Web to encounter the notion that the fat old-media dinosaur is at all costs trying to silence the vox populi whooshing through the wires of new media. Old media just don't get it -- that's the new-media refrain.
An exemplary scene of communication failure occurred when I asked Esther Dyson about the social scientists who question her belief that we have more information today than ever before. After all, having access to more data in the office doesn't necessarily imply that the worldwide sum of data is growing too. "Pardon me, but they're wrong," she said. Her tone suggested that she was exasperated at my denseness. "You couldn't sit in your office and get the things you need -- it is very different today, I'm sorry. We're talking about hundreds of thousands of different people trying to push information on the Web." But if the global network is replacing the knowledge of previously disparate cultures with a single reference point, it could actually be diminishing the total ... "Pardon me, but information is growing," Dyson said. "We're in a radically different time now. It just is different." Then she asked if I had another question.
"The technology has changed," Hal Varian, an economist who is the dean of the School of Information Management and Systems at Berkeley, acknowledges. "But that doesn't mean the laws of economics have been repealed." Varian and Carl Shapiro, another Berkeley economist, are the authors of Information Rules, a forthcoming guide to the "durable economic principles" that underlie the new technology. Yes, Varian says, the Internet means that content providers must compete for audiences in a new medium. But the situation is "hardly unprecedented." Businesses have overcome such problems in the past. Dyson's proposal that software firms give away programs and charge for every support call is "like the old story of giving away the razor to sell the blade," says Stanley Besen, the economist at Charles River Associates. "Nothing really strange there."
Although such economic strategies have been around for decades, the authors of computer programs, newspaper articles, and books have seldom employed them -- or at least not with happy results. If software companies made their money by charging for every support call, they would lack the incentive to produce reliable, easy-to-use products. If editors of newspapers and magazines had to depend solely on advertisements and sponsorship, they would be even more vulnerable to conflicts of interest than they already are. If novelists had to make their living from public performances, Thomas Pynchon and J. D. Salinger would be penniless, and Salman Rushdie would be dead.
Content providers have instead relied on two other time-tested strategies. One is to shout for attention -- as the Fox network does when it broadcasts videos of wild-animal attacks, or Matthew Drudge does when he prints lurid rumors about political figures in the online Drudge Report. A second strategy is to try to produce works with some special quality, and thereby attract a small, loyal audience. Highbrow artists adopt this method, and so does almost everyone who isn't purveying animal-attack videos: Charles Wuorinen, the atonal composer, and R. Crumb, the underground cartoonist. This strategy produces most of the diversity. From the standpoint of society, a major goal of copyright is to smooth diversity's path, by giving creators special rights to exploit their work. If copyright becomes meaningless, the durable economic principles Varian speaks of will make it almost impossible to create works for small, specialized audiences, and an awful shrieking homogeneity will beset the culture.
Copyright works for the public good in another, equally important way: it prevents content owners from locking up the raw materials of culture. Too little copyright protection can be bad, but if copyright is overly strengthened -- if what legal scholars like to call its "delicate balance" is disrupted -- we face a different peril. What is that? I've found the prospect hard to describe to friends, because there aren't many familiar historical analogies. Sometimes I call it Clickwrap World. Sometimes I call it 1984TM. Whatever the name, it's what government and the copyright industry seem to be giving us. Alas, proposed changes in intellectual-property law that are now before Congress and the states have the potential to make the Internet every bit as revolutionary as the cyberpundits say.
AVID Nimmer has a story. Imagine the year 2010, he says. The last Barnes & Noble-Walden-Borders-Broadway store in the United States has just closed. Now no offline book, music, or video stores remain, except for a replica bookstore in Disneyland. Anyone who wants to obtain poems, essays, or novels must download them from the Internet into an electronic book. Anyone who wants to watch a movie, listen to recorded music, or look at a reproduction of a painting must download it into the appropriate copyright box. But before getting books, music, and films, people must first click on the "OK" button to accept the terms of the ubiquitous standard download contract -- the "Gates from Hell Agreement," Nimmer and two co-authors call it in a forthcoming article in the California Law Review.
The agreement prohibits the contractee from letting anyone else view the copyrighted material. If problems surface, the agreement authorizes private police officers to descend on users' houses to check for illicit printouts and copies. Should search victims whine about unwarranted search and seizure, the courts reply that they freely signed away those Fourth Amendment rights by clicking the "OK" button.
"Crazy, isn't it?" Nimmer says of this scenario. "But that's what they're talking about." A former federal prosecutor, Nimmer is now at the Los Angeles firm of Irell and Manella, and is an author, with his late father, of Nimmer on Copyright, a widely cited treatise. A lawyer who represents entertainment, publishing, and technology companies, Nimmer is an advocate for the rights of copyright holders. Yet he is greatly distressed by some of the proposed legislation. "You're talking not about copyright but about an attack on copyright," he says. "I'm extremely bothered by where we might be heading."
The full text of the World Intellectual Property Organization's 1996 treaty.
Because the copyright industry has energetically campaigned for protection
against illicit copying, Congress is knee-deep in copyright bills. One of the
most important would bring this country into conformity with a treaty adopted
in 1996 by the World Intellectual Property Organization. WIPO administers the
Berne Convention, an international-copyright agreement enacted in 1887. The
WIPO treaty, which is universally lauded, asks signatory nations to "provide
adequate legal protection ... against the circumvention of effective
technological measures" against piracy. To implement this request, the Clinton
Administration and many prominent Republicans have backed legislation that bans
making or using any device that can evade any method of copy protection. In
making the vague language of the treaty harshly specific, the Administration
set off an explosion of protest.|
Proponents of the legislation, who range from Jack Valenti, of the MPAA, to Mark Stefik, of PARC, regard it as essential to fighting piracy -- unless evading copyright protection is made illegal, copyright boxes will be futile. New "cable modems," Valenti says, "can haul down a two-hour motion picture in about two minutes. If we don't have a protective shield around our encrypted material, I don't have to tell you how dangerous that will be." Opponents such as Adam Eisgrau, of the American Library Association, and Pamela Samuelson, the Berkeley law professor, believe that the proposed legislation is more sweeping than needed to implement the treaty.
By a voice vote in May the House did, however, pass a separate major copyright law: the Collections of Information Antipiracy Act, which makes databases copyrightable. In 1991 the Supreme Court ruled unanimously that a company can copy a competitor's entire telephone directory without infringing copyright, because facts cannot be copyrighted, and the listings, though expensive to collect, are just facts. Economists decried the decision, which reduces the incentive to create databases. The database industry begged Congress for help. Opponents continue to fear that in the long run the Collections of Information Act will effectively make the facts in databases copyrightable -- a big mess for everyone, especially reporters. Remember the remarks from Samuel Johnson and Daniel Defoe cited above? As is common journalistic practice, I lifted them from someone else -- in this case Mark Rose, of the University of California at Santa Barbara, who spent countless hours scouring eighteenth-century periodicals in researching his book Authors and Owners: The Invention of Copyright. My failure to attribute the quotations to Rose was discourteous but not illegal -- fair use applies. If Rose had assembled those quotations into a database of pithy remarks about copyright, matters might change. Although the database-antipiracy act specifically allows journalists and researchers to use isolated facts from databases without permission, opponents believe that the new law, by permitting prosecution, will make reporters and scientists reluctant to cite facts. "Here we are, privatizing a large chunk of the world of fact," says James Boyle, a copyright specialist at the Washington College of Law at American University, "and The New York Times hasn't even written a story about it." The Senate has not yet considered the House bill. [Update, 9/1/98: It will soon be forced to do so, though, because in August the House passed the substance of the database bill again, as an extraneous provision in its version of the copyright-treaty implementation. As a result of this clever, confusing parliamentary maneuver, the Senate will have to consider the database issue when it meets with the House to reconcile the two now very different versions of the treaty legislation.]
Yet a third congressional action would extend the term of copyright to the life of the author plus seventy years, the length now common in Europe. The proposed legislation would also protect works owned by corporations for as long as ninety-five years.
When these proposals appeared, last year, they aroused violent opposition from what Barlow proudly calls "a ragtag assembly of librarians, law professors, and actual artists." He adds, "This will sound hyperbolic, but I really feel that the copyright industry, its congressional supporters, and the Clinton Administration were trying to propose that if you read a book, you were making a copy in your memory and should therefore pay a proper license." The underlying legislative problem is that "the movement is all in one direction," James Boyle says. "There's no movement to contract copyright terms or increase fair use. And that isn't even starting to talk about Article 2B."
In intellectual-property circles "Article 2B" is shorthand for proposed changes in that portion of the Uniform Commercial Code. The primary body of commercial law in the United States, the UCC traces its origins to the late nineteenth century, when representatives of the states, worried that Washington would pre-empt local governmental power, convened and agreed to draft standardized laws that would settle many interstate confusions and also keep Uncle Sam away. After enacting statutes governing areas such as divorce, stock transfers, and business partnerships, the states ambitiously decided in the late 1940s to create a comprehensive national framework for buying and selling. Since 1974 the Uniform Commercial Code has held sway in every state (Louisiana hasn't endorsed all of it).
A collection of links to commentary and analysis about Article 2B.
"A guide intended for both lawyers and non-lawyers who are interested in following or commenting on the law as it is being written."
Article 2 of the UCC governs sales. If a customer in a store selects and pays
for a shirt without exchanging a word with the salesclerk, can the shirt be
returned because of a defect? Yes, because the transaction is covered by an
implied contract, and the terms of that contract are set out in Article 2.
Buyers automatically get an "implied warrant of merchantability" -- a promise
that the merchandise is fit for ordinary use. |
Naturally, some businesses would rather not accept returned goods. To avoid Article 2, they must disavow the warrant of merchantability. Conspicuous signs saying ALL SALES "AS IS" will do the trick. Note the "conspicuous" -- the disclaimer can't be hidden. The annals of state courts are littered with suits in which sneaky sellers hid disclaimers in the glove compartments of cars or within packages of seeds. Invariably, the merchants lost.
Now consider a customer who selects and pays for a computer program without exchanging a word with the salesclerk. Thinking that the software can be returned if defective, the customer drives home, opens the shrink-wrapped box, and -- what's this? Inside the box is a limited warranty and a license agreement. The warranty for my copy of Windows95, for instance, disclaims all "implied warrants of merchantability." Does this absolve Microsoft from Article 2? In 1991 the federal appellate judge John Wisdom said no. "Shrinkwrap licenses," as they are called, change the terms of the implied contract after it has been negotiated, violating the Uniform Commercial Code.
Manufacturers hide licenses inside the box because shopkeepers and customers alike would rebel against such terms if they were clearly stated at the time of sale. Despite the potential for alienating customers,
An additional motive was the emergence of "clickwrap" licenses -- the interposition of an onscreen disclaimer and an attendant "OK" button that users must click to accept its terms before downloading intellectual property from the Web. Clickwrap licenses, too, are controversial, because buyers cannot conceivably negotiate their terms. Such contracts have frequently been ruled invalid. Although a federal judge in California, relying on Easterbrook's shrinkwrap decision, decided last April that clickwrap agreements are enforceable, the software industry wanted the new Article 2B to remove all doubts.
In plain language, the proposed Article 2B legitimizes both shrinkwrap and clickwrap licenses. This in itself upsets consumer advocates. What dismays David Nimmer and other experts is that the licenses have already been used to claim such wide-reaching rights that their general application could have a major impact on the culture as a whole. "People don't understand what's going on, because it's software, and software is strange stuff to them," says Cem Kaner, a software developer and lawyer in Santa Clara, California. "But it's exactly the same as buying a book and being told that you can read it only in one room of the house and can't lend it to friends."
Microsoft Agent is a program that makes cute little animated figures. The license not only tells customers they can't "rent, lease or lend" the program but also informs them that they have no right to make the figures "disparage" Microsoft. McAfee VirusScan, the leading anti-virus software, has a license term that is every writer's dream: nobody may publish a review of the program "without prior consent" from the company. But even that is surpassed by Digital Directory Assistance, maker of PhoneDisc, a CD-ROM containing millions of phone numbers and addresses. According to the license, the software can't be "used ... in any way or form without prior written consent of Digital Directory Assistance, Inc."
If agreements like these govern electronic books in the future, the ©-chip inside will not permit the text to be transmitted unless the customer first accepts the clickwrap license. Because current licenses typically forbid copying or lending intellectual property, Nimmer fears that copyright owners will end up with all the protections of copyright while the public is forced to surrender its benefits -- especially the right to lend privately or copy within the limits of fair use the expressions of others. Any reader who wants to challenge the licenses for overreaching copyright will be forced into litigation -- a situation that inevitably redounds to the benefit of large companies that can afford to pay legal fees. "It's an end run around copyright," Nimmer says. "It provides a mechanism to put a stranglehold on information, and that in itself is a bad idea."
A 1785 newspaper opinion piece by Emmanuel Kant.
I submit that it is even worse than he thinks. Copyright, according to Martha
Woodmansee, an English professor at Case Western Reserve University, is
implicitly based on the "romantic notion of the author." During the
Renaissance, she explains in The Author, Art, and the Market, writers
generally considered themselves vehicles for divine inspiration, and thus not
entitled to benefit personally from their work. "Freely have I received,"
Martin Luther said of his writing, "freely given, and want nothing in return."
In the eighteenth century the book trade grew; some writers changed their minds
about making a living from the pen. Justifying the switch, the German
philosophers Johann Fichte and Immanuel Kant evolved the image of the artist as
a sovereign being who creates beauty out of nothing but inspiration.
This picture, though lovely, is incomplete. Artists often combine the materials around them into new forms -- inconveniently for copyright, which assumes solitary originality.
Warhol's place in art history is uncertain, but in one respect he was right on target. In a time increasingly dominated by corporate products and commercial media, the raw materials out of which art is constructed seem certain to include those products and media. In the 1940s little girls bonded emotionally with anonymous dolls and had elaborate self-transformative fantasies about Cinderella, whose story they might have heard from their parents. Today girls bond with BarbieTM and dream of the broadcast exploits of Sabrina the Teenage WitchTM. Fans fill the Internet with homemade stories about Captain Kirk, Spiderman, and Special Agent Fox Mulder -- skewed, present-day versions of the folktales our forebears concocted about Wotan, Paul Bunyan, and Coyote the Trickster. Five hundred channels watched six hours a day -- how can art that truly reflects the times ignore it?
Copyright should not impede artistic efforts to explain our times. Nor should we let it interfere with the relation between producers and consumers of art. Any work of art is a gift, at least in part -- something done not purely from motives of calculation. Knowing this, people approach works of art in a more receptive state than they do, say, advertisements. The same people who would unhesitatingly copy Microsoft Word at their jobs, the novelist Neal Stephenson said to me recently, "would no more bootleg a good novel than they would jump the turnstile at an art museum." Stephenson, the author of The Diamond Age, a witty, imaginative science-fiction novel about pirating an electronic book, and the forthcoming Cryptonomicon, believes that in the long run this relationship of respect and trust is the only safeguard that works of art have. It is also the reason they are worth safeguarding. What will the act of reading be like if every time I open a book I must negotiate the terms under which I read it? The combined changes in copyright law could lead us closer to what Michael Heller, a law professor at the University of Michigan, calls "the tragedy of the anticommons," in which creators and writers cannot easily connect, because they are divided by too many gates and too many tollkeepers.
It seems unlikely that in the foreseeable future all ties will be severed. But opposing pressures from the Internauts who want to open copyright up and the software companies and publishers who want to clamp it shut presage major change in the way our culture is created and experienced. Unfortunately, as Hal Varian points out, we will be changing laws today to fit a tomorrow we can as yet only guess at. The likelihood of guessing correctly now, he says, is "close to minimal." Yet it's easy to feel the pressure to make -- and force -- decisions right away. As I write this, knowing that I am close to finished, I realize what will be one of the first questions my editors ask: whether they can put this article on the Web.
Charles C. Mann is a contributing editor of The Atlantic. His most recent book is @ Large (1997), written with David Freedman.
Illustrations by Theo Rudnak
Copyright © 1998 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; September 1998; Who Will Own Your Next Good Idea?; Volume 282, No. 3; pages 57 - 82.