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Life, Liberty, and ... the Pursuit of Copyright?
Round One: Opening Remarks

Mark Stefik

Charles Mann identifies two opposing camps on the question of copyright in the digital media. One camp says that copying cannot be controlled, and that's a good thing. Ideas want to be free. The other camp says that new technology will make it possible to thoroughly regulate our use of works, and that's a good thing. Ideas want to be paid for. But understanding what's ahead in terms of copyright and digital publishing is more than a debate between those who believe that ideas want to be free and those who believe that ideas want to be paid for.

Lawrence Lessig writes:
"Life on the Net is regulated; its regulation, however, is not primarily through law. Its primary regulation is the code of cyberspace itself -- the software and hardware that together set the terms, or the rules, or the law, of how behavior will be. It is this code that now lets people copy whatever they want, and this code that gives rise to the copyright panic that Charles Mann writes about."

See the rest of Lessig's opening remarks.

Let me offer three observations toward understanding the dynamics and choices of the situation. First, the current "trusted systems" for regulating use of digital works are very much in flux. An interplay of social and technological forces is shaping the course of the technology's evolution. Second, there are many ways in which society can choose to pay for the labor of those who create works. Some approaches even permit differential pricing, which makes works more cheaply available. Third, the emerging technologies offer us new ways to balance the rights of ownership of digital works with other socially sanctioned values -- issues now regulated by fair-use provisions of the copyright law. In short, the shaping of this element of our social and economic lives is now open to both choices and experimentation.

Differences in levels of security and trust are part of what is changing as new devices become more portable, as greater bandwidth becomes available, and as different segments of the information and entertainment industries continue to converge on digital devices. I believe that before we see widespread use of "copyright boxes," for example, we will need social components of control as well as technological ones -- an insurance industry, for one thing, to help manage the risks of loss of control of digital works.

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.

One corner of the debate on trusted systems concerns whether they shift the balance of control excessively in favor of publishers, potentially removing or

John Perry Barlow writes:
"Most of the folks who presently make their livings by their wits do so not under the protection of legally instantiated methods of 'owning' their own intelligence or expertise but rather by defining value on the basis of continued and deepening interaction with an audience or client base. This applies equally to performing musicians, doctors, architects, consultants, and, indeed, copyright lawyers."

See the rest of Barlow's opening remarks.

eliminating other kinds of so-called "fair use" currently supported by copyright law. Underlying this issue is a potential shift in the legal basis for controlling use of digital works -- from copyright law to contract law -- with the possible result that the contracts governing the use of a digital work could be digital contracts enforced in part by a copyright box or trusted system.

Consider two approaches to creating something like fair use in a digital medium with trusted systems. The first depends on the workings of the market. The basic idea is that publishers would compete in their offerings to provide reasonable prices and reasonable rights for using digital works. Publishers who are too greedy would lose business, and it would all balance out. Another approach, which does not depend on faith in the market, is to issue digital "fair-use licenses." The licenses could be free of charge. They would be analogous to driver's licenses and could be granted by an independent third party, sponsored by the publishing industry, say, to anyone who could

Mann writes:
"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... Do you think the public should or would accept this sort of surveillance?"

See the rest of Mann's response.

demonstrate a knowledge of the provisions of fair-use law. For example, someone with the license would demonstrate an understanding that unauthorized distribution of a work owned by someone else was unlawful. A person with a fair-use license could exercise some limited "permission" to use a digital work without a fee. They might be able to extract a small portion of a work to cite in a review of the work. One of the ideas in this approach is to create "fair-use insurance," which would help to balance the greater risk to publishers in the digital medium, where if a person gains access to a digital work and then unlawfully exceeds the bounds of fair use to distribute it widely, the publisher may sustain a substantial loss.

In closing, we are living in a time where social choices and technological choices are interacting. Over the next few years, we will probably see experiments in trusted systems, experiments in methods for sponsoring and paying for the work of creators in the digital media, and experiments in balancing the property-rights values of publishers and creators with the fair-use interests that guard free speech and other social values.

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

Mark Stefik is a principal scientist at the Palo Alto Research Center (PARC) and head of its new Secure Document Systems group. He is also a fellow of the American Association for the Advancement of Science (AAAS) and a fellow of the American Association for Artificial Intelligence (AAAI). He is the editor of Internet Dreams (1996) and the author of The Internet Edge, forthcoming from MIT Press in 1999.

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