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Life, Liberty, and ... the Pursuit of Copyright?
Round Two: Response

John Perry Barlow

Nearly everyone who thinks about this stuff is familiar with the first half of Stewart Brand's famous quote, "Information wants to be free." Almost no one is aware of his entire sentence, which reads:
Information wants to be free -- because it is now so easy to copy and distribute casually -- and information wants to be expensive -- because in an Information Age, nothing is so valuable as the right information at the right time.

And it is because of this that I have some sympathy with both Lessig's and Stefik's desire to create methods, whether with law or technology, that would permit creators to reap a harvest from the information they make. Hell, I make my living with my mind like most other folks these days. I certainly want to be paid for it and fully expect that, by a generally roundabout means, I will be.

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

"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

"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

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.

But I don't have much faith in the approaches either Lessig or Stefik seem to be proposing. I think each of them dreams of building fences around tornadoes.

Stefik seems to propose that all new intellectual creations will be put in cryptographic bottles of his devising, something he calls "trusted systems." (One wonders: Will Stefik and Xerox thereby get a royalty every time some future creator thinks a thought he wishes to make expensive?)

Lessig writes:
"As always, Barlow's rhetoric is art, and his art is seductive. I, however, remain skeptical. Publishers as bottlers do have power in real-space publications to control what is put in the bottles. The economic constraint of publishing gives them that power, and those economics, in cyberspace, will change. But cyberspace will have constraints of its own. The paper may be free, but time is still money. Power will shift, not disappear -- from those who buy paper by the ton to those who edit channels."

See the rest of Lessig's response.

To some degree, Mark's magic bottles might not be all bad. When I wrote "The Economy of Ideas" some years ago, I proposed that cryptographic enclosures would be one way of addressing the lesser-known half of Stewart Brand's paradox. While at that point I doubted their ability to protect anything interesting over time, I could see that much information was highly perishable. If you couldn't get it "at the right time," it wasn't worth all that much. (As Mick Jagger sang, "Who needs yesterday's papers?")

Once the stuff was decoded, I figured, it would spread as rapidly as useful information generally does, and crypto-bottles would work long enough to return the value of time-sensitive products to their makers. I still believe that.

But I hadn't counted on such wizardry as the likes of Mark Stefik can conjure. I had not counted on the capacity of trusted systems to go on working indefinitely, thus transforming a market where wine is sold in bottles from which everyone may drink infinitely -- as is the case with books -- into a market where all wine is sold by the sip. Forever.

If such a vision is to be realized, it will mean the end of libraries, of which Andrew Carnegie said:
I choose free libraries as the best agencies for improving the masses of the people, because they give nothing for nothing. They only help those who help themselves. They never pauperize. They reach the aspiring and open to these chief treasures of the world -- those stored up in books. A taste for reading drives out lower tastes.
In the place of libraries would be a system that would informationally pauperize those who were already economic paupers and would greatly amplify and permanently institutionalize the adage that "the rich get richer." It would also make a private garden of the ecology of ideas, robbing us all of the new wealth of ideas that might built by the poor from the compost of those previous thoughts to which they would no longer have access.

Stefik writes:
"For Barlow, the sale of digital works is a publisher's issue rather than an author's issue. But his example of Thomas Paine's famous writing seems very far removed from the many kinds of digital works being produced today (movies, animations, newspapers, photographs, recordings, and so on), which vary greatly in their production expense and values."

See the rest of Stefik's response.

Fortunately, I think Stefik's system (and others like it) will fail, just as the early systems of copy protection for software failed -- even though Congress has recently come to his aid by proposing to criminally penalize any systems designed to break such cryptographic protection. There has always been an "arms race" between locksmiths and safe-crackers. It has been an even heat to this point, and I expect it will continue to be.

Lessig's notions of protecting creation by means of law are equally frightening -- and ultimately weak. Or so I hope.

I think they are weak because information really does want to be free, and if it takes massive civil disobedience or the dangerous toil of people willing to retranscribe important expressions by hand (as in the case of Soviet samizdat), people will listen to their hearts when their minds are stirred.

There is already a huge disjuncture between what is legal and what is socially acceptable in this area. When I speak to audiences about copyright, I always ask how many present can claim to have no unauthorized software on their hard disks. Even when I'm asking this question of publishers, record executives, or copyright lawyers, I never see more than 10 percent of the hands go up (and I suspect that some significant number of these are lying).

This indicates to me that not too many people are carefully reading all that legal fiction that is printed on the sealed envelopes that cover the tangible objects, whether floppy or ROM, that contain the intangibilities of commercially produced code.

What is important to say here is that it is unusual for law to prevail against massively accepted social practice. For all the tough talk about -- and action on -- drastically increasing "education and enforcement," I suspect these measures will be as effective as they have been in the "War on (Some) Drugs," of which such rhetoric is so highly reminiscent.

However, there are many moves presently underway by the world's information mongers -- the publishers, the licensors, and the distributors -- to seriously criminalize the reproduction of all copyrighted material. These efforts have taken deep root in both Washington and Geneva, where money talks and truth can take a hike.

And it is not simply that the Motion Picture Association, say, can muster more campaign donations than I can that makes these efforts so powerful. Copyright is the best international instrument for shutting people up when they threaten the status quo. A country may be limited to proscribing expression that resides on servers within its own borders, but thanks to the Berne Convention, no country is limited to its borders when it comes to proscribing expressions that contain any expressions that might be copyrighted.

Copyright has been and will be used to maintain the authority of the already powerful on a global basis. For that reason, I fear Larry Lessig's resort to law. As I've said before, you can't own free speech. But many will attempt to control it by that means. And they will do with a harshness that increases in direct proportion to their growing sense of fragility.

Still, I have faith not only that Stefik and Lessig are both wrong but also that neither of them will prevail in their wrongness. More to the point, I have faith that their failure to prevail will not economically disadvantage me as a creator any more than the de facto failure of copyright to protect the works of Microsoft has apparently disadvantaged Bill Gates. People are not paying to "own" the software Gates produces (which they can easily obtain by other means), but to enter into an interactive relationship with his company that will provide them, without shame, timely access to its latest versions, not to mention the support his opaque crap surely requires.

What is required here is neither law, as proposed by Lessig, nor code, as proposed by Stefik. What is required is an understanding of how information economy really works. Those who figure that out, and quit trying to treat information as though it were another form of manufactured goods, will be the real economic winners.

I am not being optimistic. I am being practical. This works for me. It has worked for me abundantly, and will continue to -- unless, of course, such faithless, though brilliant, advocates of order as Lessig and Stefik screw up not only my good deal but everybody's informationally abundant future.

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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