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Life, Liberty, and ... the Pursuit of Copyright?
Round One: Opening Remarks

John Perry Barlow

Is copyright dead? No.

Nor should it be, at least so long as it applies to those physical objects that were explicitly described in Section 102(a) of the United States Copyright Act, wherein it is stated that:
Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
The key phrase in this passage is "tangible medium of expression." This is not an ambiguous string of words. It clearly means, as it was written to mean, a physical object. It describes that sort of thing to which Immanuel Kant referred, as quoted in Charles Mann's opening volley for this discourse -- an object into which has been embedded "the spirit" of human expression.

From Post & Riposte:

"By consulting the Oxford English Dictionary, we can see that this usage of 'tangible' as applying to non-physical as well as physical entities goes back at least to 1709, which is why we can refer to such things as 'tangible ideas.' So it's obvious that the Copyright Act's language does indeed apply to information that appears on the Internet as well as in books and other 'hard copy' media."
--K. W. Jeter, 9/11/98

What Do You Think?
Join the debate in the "Life, Liberty . . . Copyright?" forum of Post & Riposte. We'll highlight selected readers' remarks as the Roundtable progresses.

Kant and those time-distant gentlemen who drafted the original Copyright Act were referring to such unambiguous, clearly definable items of manufacture and property as books and periodicals. (To which we have since added such other "spirit containers" as compact disks, film strips, photographic negatives, lithographs, and a host of other collections of atoms one might touch -- tangible things.) From the time of Gutenberg to the near present, such items were the only vessels by which the electro-chemical sputterings that took place in one cranial cavity might be amplified and conveyed into thousands, even millions, of other minds.

The production of such objects required industrial processes that were subject to all the usual economic laws of the physical world. Kant's objects were difficult to make, whether in quantity or not, requiring investment in equipment and expertise that was costly beyond the practical means of most individuals. In order for such objects to exist in sufficient numbers and diversity to create the vital intellectual ecology necessary to the advancement of civilization, enlightenment, and liberty, it was important that their manufacturers -- the publishers -- be legally assured some return on their investment.

Lawrence Lessig writes:
"Life on the Net is regulated; its regulation, however, is not primarily through law. Its primary regulation is the code of cyberspace itself -- the software and hardware that together set the terms, or the rules, or the law, of how behavior will be. It is this code that now lets people copy whatever they want, and this code that gives rise to the copyright panic that Charles Mann writes about."

See the rest of Lessig's opening remarks.

Thus, as copyright law evolved, the medium became the message in a very literal fashion. While both the law and lawmakers continued to enshrine the incentivization of creators, the real focus of both was assuring the institutional preservation of publishers. Genuine creators, they knew, would create anyway. They have no choice. But publishers are rarely driven by any such sense of mission.

In the days during which copyright evolved, there was much to be said for protecting the publishers. It is unlikely that Tom Paine wrote Common Sense with a pecuniary motive, but producing the world-shattering volume of this volume -- which today would translate into the production of about 150 million copies -- required the enthusiastic cooperation of publishers who were less nobly driven. Both God and Mammon were served, though only Mammon required the protection of law.

The printers who produced those books were, as I've said, operating under the same economic assumptions that have always driven the economy of atoms -- namely, that there is a relationship between scarcity and value. It serves nobody's interests to flood the market with more product than it can absorb. Copyright was created, as Mr. Mann has suggested in his article, to preserve that necessary scarcity.

On the other hand, Paine's ideas -- the spirit contained in those objects with "Common Sense" embossed on their spines -- increased in value with each fresh mind that encountered them, until they attained a level of collective belief capable of changing the world. In this case, as in many other examples of information economy at work, the real value lay in abundance, not scarcity, since only in abundance could those ideas foment viable revolutionary momentum.

Mark Stefik writes:
"Understanding what's ahead in terms of copyright and digital publishing is more than a debate between those who believe that ideas want to be free and those who believe that ideas want to be paid for.... The shaping of this element of our social and economic lives is now open to both choices and experimentation."

See the rest of Stefik's opening remarks.

Something equally revolutionary has now taken place. A new means of distributing creative spirit has arisen that does not require its being embedded into objects. Thanks to the Internet it is increasingly possible for anybody, anywhere, to reproduce and distribute their own creative spirit to any interested mind on the planet at essentially zero cost.

Suddenly it is becoming possible for Paine's latter-day equivalents to achieve a critical mass of belief without the massive manufacture of objects within which to spread them. Now the spirit may remain spirit, passing insubstantially from one mind to the next, without physical embodiment. No longer does freedom of the press belong to those who own one, to paraphrase A. J. Liebling. No longer is there an advantage endowed to those who, in Twain's phrase, "buy ink by the barrel."

Ideas are empowered -- indeed, enfranchised -- not by the willingness of publishers to print them, but by their own credibility. Through an amplifying cascade of mouse clicks, they reproduce until they have reached sufficient mind-share to change politics. Attempting to "bottle" them, as Mark Stefik proposes, neither serves the revolutionaries, like Paine, who would gladly take their payment in a world changed, nor the mercenaries, who create only for the money.

Like the currently proposed copyright revisions, as well as those recently passed, such technical measures are designed almost entirely to perpetuate the moribund publishing and distribution industries, which are desperately seeking to preserve by law what can no longer be sustained by necessity.

As a songwriter and essayist (who is highly motivated by greed, thank you), I have absolutely no economic interest in supporting either technical or legal efforts to protect the publishing industry, which has preyed on my kind for 500 years. I know full well that the preservation of my interests lies not in regarding my works as "property" but rather in shifting the emphasis of protection to relationship.

This is a purely practical assessment. I could, for example, claim to "own" my friendships, but it would hardly increase their value. (On the contrary, I suspect.) On the other hand, if I create an open network of those friendships that grows itself by virtue of its own reward, I will be enriched by opportunity.

This is not a revolutionary idea. Most of the folks who presently make their livings by their wits do so not under the protection of legally instantiated methods of "owning" their own intelligence or expertise but rather by defining value on the basis of continued and deepening interaction with an audience or client base. This applies equally to performing musicians, doctors, architects, consultants, and, indeed, copyright lawyers (who, ironically, rarely copyright their briefs, and are greatly enriched by their ability to use one another's boilerplates without legal impediment).

Cyberspace is an environment of Mind, and spirit may travel within it without objects -- real, virtual, or legal. The more each of us puts into it, freely and unencumbered, the more we will get back. Let us fertilize this new garden with our thoughts. Collectively, we will grow fruits that no one of us could imagine.

What do you think?

Join the debate in the "Life, Liberty . . . Copyright?" forum of Post & Riposte. We'll highlight selected readers' remarks as the Roundtable progresses.

Roundtable Overview

Introduction by Charles C. Mann

Round One: Opening Remarks -- posted on September 10, 1998

Round Two: Responses -- posted on September 17, 1998

Round Three: Concluding Remarks -- posted on September 29, 1998

John Perry Barlow is a retired Wyoming cattle rancher, a former lyricist for the Grateful Dead, the co-founder and current Vice-Chairman of the Electronic Frontier Foundation, and a Fellow at Harvard Law School's Berkman Center for Internet and Society.

Copyright © 1998 by The Atlantic Monthly Company. All rights reserved.
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