u_topn picture
Atlantic Unbound Sidebar

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

Mark Stefik

In their opening remarks for this roundtable Larry Lessig and John Perry Barlow raise important issues about the appropriate balance of interests in cyberspace.

Lessig asks how we should balance the interests of multiple stakeholders -- ranging from publishers and creators to governments and private consumers -- in the distribution and sale of digital works. If the "code" of cyberspace is the programming of computers rather than enacted law -- with all of its checks, balances, and political input -- then who will look out for the interests of stakeholders beyond the code writers?

Barlow argues that technology regulating the sale and use of digital works does not serve the interests of creators. It serves only publishers -- and who needs them? He suggests that instead of viewing creative works as income property, creators should give away their works and make money by defining and creating value on the basis of continued and deepening interactions with an audience or clients.

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

Both of these issues illustrate how the workings of cyberspace must evolve to reflect not only technological forces but social and legal ones as well.

Lessig writes:
"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?"

See the rest of Lessig's response.

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 -- encoded in a form like Xerox's Digital Property Rights Language (DPRL) -- are in many ways like a digital contract. They specify terms and conditions for using a digital work 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 -- the governance of cyberspace will not be turned over to the "code" that happens to be written in digital contracts. What it signals, however, is a partial shift -- from copyright law to contract law -- in the legal basis governing creative works. Think of the so-called "shrinkwrap" and "clickwrap" licenses that appear on purchased software, or of the machine-enforced contracts -- albeit simple ones -- implied in pay-per-view television.

The idea that emerging trusted-systems technologies will enforce the terms and conditions of a digital contract adds some new wrinkles to the situation. For example, it makes it possible for both parties to signal agreement before a contract is deemed to be in force. When a digital contract is written in simple rules -- such as those expressible in DPRL -- it becomes possible for a machine to automatically and systematically scan the rules for unusual and unfair conditions, and thus to warn the parties of unusual provisions such as high prices or special restrictions.

Barlow writes:
"Fortunately, I think Stefik's system (and others like it) will fail, just as the early systems of copy protection for software failed -- even though Congress has recently come to his aid by proposing to criminally penalize any systems designed to break such cryptographic protection. There has always been an 'arms race' between locksmiths and safe-crackers. It has been an even heat to this point, and I expect it will continue to be."

See the rest of Barlow's response.

Machine enforcement of digital contracts introduces third parties to an agreement -- potentially including the manufacturer of the trusted system and various software on the system. This becomes relevant in such cases as when a trusted system fails, either due to a design flaw or a cyber-attack such as might be caused by a computer virus. If a trusted system fails to uphold a contract, liability for damage due to modification or unauthorized copying of a digital work may lead to a spreading of liability to the third parties. But before use of such trusted-system approaches to regulating digital works will become widespread, it will be necessary to do more than develop secure systems. It will be necessary to develop social and legal institutions as part of the cyberspace infrastructure.

A final observation on contract law and digital works. Authors, publishers, and consumers are not the only stakeholders. As the potential market and revenues increase for works distributed digitally, governments are likely to pay increased attention -- and that means taxes. If taxes eventually become as certain in cyberspace as the old homily says they are in the physical world, then we can surely dismiss the notion that the "code" of cyberspace will be determined completely by the whims of publishers.

John Perry Barlow asks, Why might society want to have works for sale on the Net anyway, and who would want machine regulation of their use? For Barlow, the sale of digital works is a publisher's issue rather than an author's issue. But his example of Thomas Paine's famous writing seems very far removed from the many kinds of digital works being produced today (movies, animations, newspapers, photographs, recordings, and so on), which vary greatly in their production expense and values. With the convergence of media, these creative works are also potential candidates for the advantages of distribution in cyberspace.

In principle, trusted systems offer many new kinds of flexible pricing and new modes of pricing. For example, they make it possible to rent many products that until now one could only buy. Such options are of interest, for example, to casual users of very expensive software packages. Differential pricing can be turned to socially useful causes, too -- publishers could grant free use or deep discounts to the poor and the disadvantaged. Publishers face little or no expense for such distribution, which, of course, has a potential upside: when people's situations change, they may have developed brand loyalty to the more generous publishers.

In summary, 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.

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.
Cover Atlantic Unbound The Atlantic Monthly Post & Riposte Atlantic Store Search