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

Charles C. Mann

Larry Lessig's half-serious prediction that the only ideas that will survive in cyberspace are those that can be expressed in fewer than 750 words -- the single scariest phrase that I've read in a long while -- threw this discussion into focus for me. Nobody knows what tomorrow will look like, but I suspect most people would agree that it should contain ideas and works of art that are more than a snack or a snippet. The goal of the social, legal, and technological frameworks we're talking about should be to help produce a diversity of substantial works (in Lessig's succinct phrase), and a citizenry that can appreciate them. If the institutions we propose don't do that, we should think twice about creating them.

Consider Robert Musil's Man Without Qualities -- a huge modernist masterwork, and surely the kind of art the intellectual-property system should foster. When Musil died, in 1942, the final portion of his unfinished novel was a chaotic mass of paper. Scholars worked until 1978 to produce a somewhat complete version. Rendering the novel from German into English took two translators more than a decade -- an expensive business. Knopf, which published the translation in 1995 (two volumes, 1774 pages), couldn't have done it without the chance, offered by copyright, to recoup its investment.

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.

Would the translation have been created in Barlow's future? I don't see how. Musil's book is not particularly timely; literature rarely is. Not only that, he's dead -- he can't perform to earn his keep (in any case, the man was, to put it mildly, chary of self-promotion). His translators are alive, but no one will pay to see them. Foundations, the Medicis of our era, might step in. But they had fifty years to do so, and didn't. Nor did bands of Musil fans self-organize to fund the translators. Many similar examples exist: Kierkegaard, Chikamatsu, Boris Vian. If trying to maintain a small trickle of financial support to the efforts to bring these authors to American readers truly is "building fences around tornadoes," to use Barlow's phrase, then the future is poorer for it.

Mark Stefik's trusted systems might make an English Man Without Qualities possible but would also debase the experience of reading it. Embarrassed by his presumption, Musil admitted that he wanted "to be read twice, in parts and as a whole." Actually, that's the way people read their favorite writers. Lugging poor old Musil on my vacation, I've marked the margins, dog-eared corners, e-mailed favorite funny bits, lent my copy to friends -- all without thought of negotiating a license, or of being monitored to ensure that I stick to its terms. Writing and reading are at their best private acts of communication between one human being and another. By inserting third parties (accountants and lawyers) into this process, trusted systems seem likely to diminish the value of reading -- exactly the opposite of what this society needs.

Barlow and Stefik have the great merit of putting out relatively concrete proposals. Larry Lessig and I have been carping from the sidelines. Late in the day, let me make a few suggestions, if only to learn from the criticism.

Copyright, Barlow wrote, is a "de facto failure" at "protect[ing] the works of Microsoft." This assertion would surprise Bill Gates. Copyright is the caryatid that supports the great entablature of his fortune. Users may copy Microsoft Word in violation of the shrinkwrap license, but computer makers do not -- every one of those millions of pre-loaded copies of Microsoft Office is paid for. More important, the intellectual property that is essential to Microsoft is not the digital signals on the CD-ROM, but the underlying source code. (Programmers write source code, which is then "compiled" and "assembled" into the zeroes and ones read by computers.) Because the source code cannot be deciphered from the zeroes and ones, programmers who want their software to work with Microsoft software have to jump through hoops to obtain the source code legally. To control access to the source code, Microsoft uses copyright -- a vital weapon in the corporate armamentarium.

Most of the anti-copyright forces -- the Richard Stallmans -- think the results are bad for society, that "software hoarders" like Gates use copyright to suppress innovation and competition. They may be right. But note that most anti-copyright rhetoric on the Net comes from the software realm. Novelists and architects don't complain about copyright. This suggests that the problems may lie not so much in copyright per se but in its application to software.

An apparent oddity in software copyright is that the source code does not have to be published -- two copies are not deposited at the Library of Congress. No one can read it; there's no possibility of lifting a bit on a fair-use basis. One way to ameliorate the bad effects of software copyright might be to make copyright conditional on the publication of the source code. Another might be limiting the term of protection to, say, five years. I'm not sure how much these measures would help. But they do suggest what I think will be one part of resolving our difficulties -- the application of different rules to different forms of intellectual property.

"Copyright," Barlow says, "is the best international instrument for shutting people up when they threaten the status quo." I think he's often wrong -- copyright made possible the rapid translation and dissemination of The Gulag Archipelago, and it helped Solzhenitsyn buy a house in Vermont when he got thrown out of his own country. But Barlow is right that corporate overreaching can stifle expression. My favorite example is in Barlow's own field of rock-n-roll: Allen B. Klein, the erstwhile manager of the Rolling Stones and the anti-Christ of copyright. Having grabbed the rights to all the famous Mick Jagger-Keith Richards songs from the sixties, Klein forced the Verve, an up-and-coming British band, to surrender all royalties for its first U.S. hit because the song sampled a few seconds of an orchestral version of a Stones tune. (Klein hits big stars, too: Janet Jackson lost part of the profits from "What'll I Do" because she sang the "Satisfaction" line "Hey, hey, hey, that's what I say.")

Such behavior is a problem. And it might get worse if Stefik's trusted systems make onerous contracts easy to enforce. Part of the solution would be, as Lessig says, to legally limit the terms on those contracts to something like the terms now created by copyright. Or the ProCD decision might be overruled. Presumably the cat can be skinned in several ways. And any such laws could be made international, perhaps using the Berne Convention.

The larger point is that the Internet is not "lawless" -- it is shaped by a complex regulatory and economic environment, one part of which is the institutions of intellectual property. In their different ways, both Barlow and Stefik propose ignoring that environment, because it is or will be superseded technologically. But that environment is more robust than they think. It also represents several centuries of thinking about these issues, a historical and institutional memory that should not be tossed away lightly.

Looking back, I see that I have crawled about six inches out on the limb and bravely advocated the Clintonian position of "mend it, don't end it." It would be fun to be more sweeping and radical, to invoke some kind of maximalist vision. But I don't believe that way lies the course of wisdom.

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

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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