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

Lawrence Lessig

There's an optimism in both Mark Stefik's and John Perry Barlow's essays -- a different optimism within each to be sure, but an optimism that in neither case I share.

Stefik's optimism is about the possibilities for choice. There are lots of "we"s in his essay -- "we"s making all sorts of choices about how copyright interests and fair use could be balanced. The story is hopeful; the possibilities, many.

But, one might wonder, how is this balance to be achieved? In real space the process is obvious. In real space it is the law that strikes the balance. There are many (and count me in) who would bitterly complain about the sellout to special interests that much of the codified copyright law represents, but still, the law represents a choice made by our democratic processes, whether we (or I) like it much or not.

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

Via E-mail:

"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

With copyright as code it's not clear how the same balance can be struck. Indeed, the distinctive problem that regulation through code presents is that there is no place for such a collective choice -- the choice that Stefik suggests that "we" ought to make. If one kind of "trusted systems" software protects rights of fair use, a competing version will promise more control to the owner. The winner, it would seem, will be whatever people buy. And from the perspective of the payer, fair use is a bug, not a feature.

Barlow writes:
"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."

See the rest of Barlow's response.

But maybe not. As Stefik argues, maybe the incentives of the market will be such that owners will grant fair use without the requirements of law. Bookstores in real space, for example, have no legal obligation to permit customers to browse before they buy. But they do, apparently since permitting browsing pays. So it might well be that things work out to the benefit of fair use in cyberspace as well. Whether they do or not depends -- and my point is that we need to develop ways of evaluating the mix of access and control in a world regulated by code. For again, our tradition is not to grant owners perfect control, and this tradition has good reason behind it.

I do find chilling, however, Stefik's suggestion that we erect a licensing regime to regulate the right to read. His proposal is obviously not that governments require such a regime -- and I guess it's okay if sellers give discounts to customers who show they know, and promise to abide by, the law. (I've always hoped that airlines would give discounts to people who demonstrate that they know how to get on and off planes without blocking the aisle. Maybe Stefik's idea will catch on.) But the picture of a world where one needs a license to read is nonetheless discomforting. The legal scholar Julie Cohen has convincingly argued that our tradition should protect a right to read anonymously. I think that is right, and this proposal would be far removed from that tradition.

Stefik writes:
"One way to look at the 'trusted systems' that regulate the sale and use of digital works is in terms of contract law. Rules for using a digital work ... specify terms and conditions ... in an agreement between a publisher and a consumer. Such an approach does not mean the end of legal influence on the regulation of the use of digital works.... What it signals, however, is a partial shift -- from copyright law to contract law -- in the legal basis governing creative works."

See the rest of Stefik's response.

John Perry Barlow's optimism is different. He imagines that having been liberated from printing presses -- and hence, the "physical" bottles that now carry authors' ideas -- ideas will flow freely in the ether. Views will be "empowered not by the willingness of publishers to print them but by their own credibility." Control will be removed from paper-puffed tyrants.

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. Channels will reduce the cost of using the Net, and time-frazzled individuals will depend more and more upon such editors. (A new "middleman," as Andrew Shapiro likes to warn, is essential and inevitable.) And while these editors might find different ideas "credible," their judgments will still in part depend upon economic constraints.

How those constraints will work, I have no idea. My intuition is that the "credible" will be that which can be expressed in fewer than 750 words. Maybe that's wrong. What I don't think that I'm wrong about though is the more general point: that cyberspace, like any place, will have an economics of constraint, and that this economics will dramatically affect which ideas get "empowered." Only a perpetual optimist would think that these different constraints will necessarily benefit those that they constrain.

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

Lawrence Lessig is the Berkman Professor of Law at Harvard University. He teaches and writes in the areas of constitutional law, contracts, and the law of cyberspace, and is presently completing a book, Code, and Other Laws of Cyberspace.

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