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

Charles C. Mann

All of my copanelists' remarks intrigued and puzzled me. Naturally, in such a brief space they could not spell everything out. Here, I'd like to ask some questions that I hope will give them the chance.

To John Perry Barlow (I proceed alphabetically): You remark that copyright applies to tangible objects like "compact disks, film strips, photographic negatives, lithographs, sheets of paper, and a host of other collections of atoms one might touch." These -- if I understand you correctly -- deserve copyright, but only to protect the investment of the publisher in equipment, storage, shipping, and so on. Because computers and the Internet have greatly lowered the cost of presenting and transporting words and images, the justification for copyright fails; freed from the necessity of dealing with publishers, writers and artists will deal directly with the public, which after all is who they should be trying to reach.

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

"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

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

Questions immediately come to mind. The video and audio tapes cluttering my office shelves are tangible objects. Their intellectual contents are stored in the form of tiny magnetic oxide particles, which are then electronically translated into zeroes and ones and presented in the form of vibrating molecules of air or glowing pixels. I don't understand how this differs in terms of tangibility from the material on the Net, which consists of magnetic oxide particles stored on computer hard drives and then translated into pixels and sound. Why isn't the information on the Net tangible, too? It's out of sight, but then so is the VCR in a hotel's central office that plays movies in the rooms.

Barlow writes:
"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."

See the rest of Barlow's response.

Production and distribution costs have been drastically cut by digital technology, exactly as you say. You argue that in the long run the drop in costs spells the end of the "moribund" publishing industry and the beginning of direct artist-to-public contact. Because there's already so much online, it's hard for ordinary folks to find the good stuff. Example: One reader of my Atlantic article sent me an entire novel that he had published online in 1996; to my untrained eye, the novel, Arcadia Ego, wasn't bad, but apparently few people found it in the vast midden of the Web. According to Nicholas Negroponte, Kevin Kelly, and many other e-pundits, the situation will be remedied by new services that truckle through the Net for worthy works and help present them to the attention of the public. (The difference between these services and traditional publishers is elusive, at least to me.) In any case, if this plausible scenario comes true, the services will have considerable investment to protect. Wouldn't this bring us back to a justification for copyright, even in the realm of the Net?

To Larry Lessig: You share the concerns of those who worry that technology of the sort Mark Stefik is working on would give "copyright holders the power to control access and use, the power to disable fair uses, and the ability to keep control of their material for much longer than the statutory life." As Stefik points out, this view apparently depends on the belief that contract law can supersede copyright law. Is there, in fact, any good reason to believe this? As I understand it, the Copyright Act, a federal law, explicitly preempts state-law causes of action that are equivalent to copyright-infringement claims. Would contracts that eliminate fair use run afoul of this provision? More specifically, I know that in 1996, Frank Easterbrook, a conservative judge in the 7th Circuit, apparently decided in ProCD v. Zeidenberg that contracts could ban actions that would normally be permitted as fair use by copyright law. Is this a judicial oddity that nobody should worry about or a harbinger of things to come?

Lessig writes:
"I do find chilling 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.... But the picture of a world where one needs a license to read is nonetheless discomforting."

See the rest of Lessig's response.

As suggested by my trip to Hong Kong -- not to mention my visit to the open-air pirate-videotape market on 116th St. in Manhattan -- movie producers and other "content providers" can be forgiven for their fear of uncontrolled copying. Such leakage has always existed, but one can readily believe that it's getting worse. If the trends continue -- which Barlow argues will be inevitable -- copyright will become ever less useful. At what point would publishers be justified in resorting to the private law whose effects worry you? Put more loftily, if copyright fails its constitutional duty "to promote the Progress of Science and useful Arts," would that justify measures that otherwise would be rejected because they might threaten fair use?

To Mark Stefik: You suggest two possible answers to the concerns of Prof. Lessig. The first answer is that the market wouldn't permit publishers to control their works unfairly. As publishers themselves point out, if Scribner's tries to recoup its big advance to Stephen King by telling readers that they can read his latest book only once and cannot lend it to friends, they will buy the new Clive Barker from HarperCollins instead. What puzzles me about this argument is that the software companies clearly don't believe it -- if anything, they are demanding even more power over their stuff than before. And the software companies, after all, have more experience selling zeroes and ones than anyone else. Why does the market permit LucasArts and Corbis to claim rights on their games and photographs which publishers will not be able to claim on electronic books?

Stefik writes:
"We have yet to establish the social, legal, and technological frameworks that could be the basis for a vibrant market in all kinds of digital works. Bringing such a market into existence will require more than technology. It will require making choices about technologies and institutions that reflect the competing values and requirements of stakeholders."

See the rest of Stefik's response.

The second answer involves fair-use licenses. As a non-lawyer, my reactions may be naive. But this seemed to me like an effort that would let people make an effort to acquire, via a license, a right that is already guaranteed by statute. Indeed, because fair use has some free-speech implications, some people have argued that fair use is effectively a constitutional right. Has there ever been a case in which people applied for a license to exercise a right? Secondly, such licenses necessarily involve monitoring how much people copy from protected material -- otherwise, some bad apples could use their computers to lift entire books one page at a time. Do you think the public should or would accept this sort of surveillance?

Finally, a question to all. One of the underlying confusions in this arena has to do with the way that digital technology is conflating previously separate modes of intellectual production. Today, anyone can go into a bookstore and flip through every paperback on the shelf. But they cannot generally walk into a music store and listen to a few tunes. And nobody can march into a theater multiplex and catch a few minutes of each picture. As Barlow has noted elsewhere, each type of work has its own methods of distribution. In the future, it is believed, all will be transformed into digital signals and flushed down the wire into the home. The result is that we are attempting to create a single set of economic and legal institutions for phenomena that today are quite distinct. Is there any hope of maintaining these distinctions in a way that doesn't either invite public confusion or invidious cheating by either publishers or consumers?

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

Charles C. Mann is a contributing editor of The Atlantic Monthly and the author, most recently, of @ Large (1997), written with David Freedman. His article, "Who Will Own Your Next Good Idea?", is The Atlantic's September cover story.

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