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Life, Liberty, and ... the Pursuit of Copyright?
Round Three: Concluding Remarks

John Perry Barlow

Since I aspire to both intellectual honesty and gentlemanly discourse, it occurs to me that perhaps the best way I can complete this discussion is to concede and enlarge upon the valid points my worthy adversaries have made.

First, however, I should respond to a couple of issues Charles Mann raised in our last exchange. He contested my sense that electrical impulses, even "fixed" as magnetic fields on a hard disk, are somehow immaterial in a way that "the video and audio tapes cluttering [his] office shelves" are not. Despite a certain admitted hippie mysticism about the fluid state of information out there in the datacloud, I will concede he has something of a point. It is one I've grappled with before.

The hard disk in my computer is indeed as tangible -- in the most common usage of the term -- as a book or Mr. Mann's disorderly tapes. It differs markedly, however, in that it is my hard disk. The material on it was not placed there during the process of its manufacture as a commercial object. I put it there and can as easily remove it. Furthermore, the various bits that make up a "work" can be distributed over many different hard disks at many different locations.

From Post & Riposte:

"Most people are breakers of copyright laws on a regular basis. What right have you to go into a bookshop, open a book and read the ideas of an author whose works you have not purchased?... The point is there is a well-recognized fact that if you want people to buy your intellectual efforts you have to give them time (and a place) to evaluate them. The same rule should apply on the Internet. You should have time to browse through an electronic product before buying it, without prejudice. Technology control that restricts the copying or printing of data is one thing, but technology control that restricts access to data is another. Such controls mean that the rich will get richer while the poor get poorer."
--Martin Bryan, 9/21/98

"Missing from Mann's otherwise thorough examination of copyright was the role of copyright collectives in copyright administration. Copyright collectives in fact play the moderating or intermediary role Mann seeks, falling somewhere between no copyright and impenetrable copyright boxes. Copyright collectives manage to collect royalties, individually miniscule to the individual consumer, that add up to significant revenues for publisher and author. At the same time, bulk or blanket licensing does not interfere with the open flow of information between author and reader. Is it perhaps telling that copyright collectives are so poorly developed in the U.S. that they go without mention in Mann's essay?"
--Robert Labossiere, 9/22/98

Via E-mail:

"The discussion on copyright brings to mind the question of enforcement, in regards to information on the Internet. If there are to be any new laws or policies, who is going to enforce them? Should there be an international coalition set up, since the medium involved is not confined to national boundaries? It may come down to copyright, as it is now, being applicable in only those countries that recognize these laws. Countries, like the present-day China, which do not enforce copyright laws will be looked at as 'lost causes.'"
--Craig Murray, 9/24/98

What Do You Think?
Join the debate in the "Life, Liberty . . . Copyright?" forum of Post & Riposte.

Indeed, as information moves more and more rapidly from mind to mind in cyberspace, those bits come to resemble something more like the beats of jungle drums than the permanently fixed alphabetical characters that reside in books. These liquid words are as transient and as easily expressed as cocktail conversation.

Further, Mr. Mann's argument that publishers and distributors will continue to provide editorial services that merit their owning all they edit seems entirely without value. Yes, the Internet is filled with inconsequence, but it is also, like any ecosystem, developing a remarkable ability to collectively distinguish nutrients from toxins.

This could hardly be said of the information mongers. One can scarcely begin to imagine the genius that has been forever silenced in publishing houses over the past five hundred years simply because of the immense and arbitrary power of single individuals to find such weird light economically unworthy of the industrial energies of their firms.

On the Internet, millions of people are conducting this great edit. Worthy material that might not pass through one narrow cultural filter may well be discovered and massively reproduced by another -- if those millions are both legally and technically permitted to see it in the first place.

In other words, I am not persuaded by Mr. Mann's concerns, however much I may admire the rigor and eloquence of his article.

But I do have a few encouraging words to say on behalf of my "opponents" in this discussion.

First, let me put in a note of support for Mr. Stefik's otherwise diabolical "trusted system." (Though I must digress with a short tale first.) Some years ago I was in the White House arguing with one of the fellows who was then supposedly in charge of American policy regarding digital copyright. He agreed that the Administration's policies were quite as stupid as I thought they were.

"Well, okay," I said. "Why don't you do something about it?"

"You're not going to like this," he said, "but this is the 'Real World.'" (I let pass the irony of that assertion.) "Tomorrow morning" he said, "the President is going to get a phone call from Jack Valenti, who is going to say, 'I understand Barlow has been down talking to your boys again, and I'll ask you one more time, How many campaign dollars can he muster? How do they match up with what I can muster?'"

In any event, this stark reminder of realpolitik has been on my mind since that day. And it has occurred to me that part of the answer to preserving free speech and creativity on the Internet might lie in solving Mr. Valenti's particular problem without having him impose his solution on those of us who make songs or novels or political screeds or scientific papers or almost any act of intellectual creation besides movies. His desire to protect his own industry will enslave those of us who think at less expense.

Cinema does indeed present special problems. Unlike other acts of human creativity, which have previously required an industrial process to distribute, his requires an industrial process to create. Millions of dollars in capital must be amassed up front to make a film, something that could hardly be said of a poem or a painting. It is not unreasonable for those who take such risks to look for a return on their investment.

Even though Jack cost his industry billions by keeping video cassette players out of the country for five years, he may have a point this time. There is a certain amount of effort and inconvenience in pirating a film, which almost no one seems willing to submit themselves to. The same could not be said of copying a DVD of a film onto one's increasingly capacious hard disk.

This is where Mark Stefik's crypto-bottles come in. While I think that they might have entirely adverse and unproductive effects if applied to other media, they might provide exactly the right amount of difficulty to the copying of films. For this reason, I'm going to promote Stefik's idea to Valenti (and no one else).

There is a related sense in which Lessig's legalisms might be of value. As I've said previously, The Grateful Dead had no problem with someone taping our concerts, but we were strongly opposed, on grounds more ethical than commercial, to their being turned into merchandise.

I still feel that way with regard to my own writings. I have no objection to someone's copying them to everyone in cyberspace (should they find them worthy of such massive reproduction). I take an entirely different view of someone passing them off as his or her own work, and I certainly believe that, if there is any money to be made from them, I should be the one to make it.

For this reason I would support laws -- even laws applied globally through international treaty -- that would prohibit the commercial exploitation of my works by anyone but me. These would, I think, be easy enough to enforce both through law, ethics, and, as Lessig and I both put it, architecture.

So. There. I concede that much.

As to the rest of it, history will judge. But I'm quite sanguine as to what that judgment will be. At a recent conference in Aspen, Jack Valenti and I got into a verbal dog-fight. He eventually dismissed my views by saying that, "Fortunately, you and your kind belong to a tiny minority that will never prevail."

On that occasion I was kind enough not to reply with what I wanted to say, but I will say it now: "My minority may be tiny now, Jack, but we will be alive when your majority is dead." And we will.

What do you think?

Join the debate in the "Life, Liberty . . . Copyright?" forum of Post & Riposte.

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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