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

Mark Stefik

All the participants in this discussion want information to be abundant. They differ, however, in how they answer a key question: Will information be more abundant if digital works are free (and freely copied), or will it be more abundant if it is possible to sell and copyright those works?

In considering this question it is useful to look for historical parallels, as Charles Mann did when he alluded in his cover story to Carla Hesse's book Publishing and Cultural Politics in Revolutionary Paris, 1789-1810.

Like John Perry Barlow, French revolutionaries argued that ideas cannot be owned and should not be regulated. During the Revolution many writers and underground publishers were seen as civic heroes of public enlightenment. They argued against all kinds of tyranny and for freedom of the presses. They said that revolution of the mind required dismantling the laws and institutions governing authorship, printing, publishing, and book selling. People had a will to know things and should be allowed to read anything. All citizens should be able to speak, to write, and -- crucially -- to print freely.

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.

In 1789 the press was wholly deregulated in the expectation that the works of the great writers of the Enlightenment would be made universally and cheaply available. The writers and publishers never expected what actually happened with these changes: the presses mostly turned out seditious pamphlets and pornography. Printers competed with one another to bring out cheap editions of books that others spent much money developing. So little money could be made producing the best books that most editions were abridged and full of errors. The disastrous nature of an unregulated press, largely unanticipated in the heat of the Revolution, became blatantly obvious as the publishing industry fell into shambles. In the chaos of the unregulated press, even some prominent and popular writers of the period stopped publishing, because they could not control the printing of their works and could not make a living by writing.

In 1793 legislation was initiated to restore order to publishing. The legislation recognized the rights of authors and grounded the publishing industry in the principles of market commerce: the author as creator, the book as property, and the reader as elective consumer. These principles are now the basic elements of modern copyright law.

As for the Internet, we are at a crossroads. There is a lot of material that publishers do not and will not put on the Net today because they do not want to lose copyright and income. Which way lies information abundance? Which way lies freedom -- in the "tyranny" of trusted systems that distribute works according to rules, or in a different tyranny that denies everyone the use of technologies that enable a marketplace of ideas?

Finally, I believe that readers would be ill served if I let some of the earlier statements of my codiscussants go completely unchallenged.

1. Nobody has to use trusted systems. If you are an author and like the way that free distribution works now on the Net (including practically unenforceable copyright), then just keep doing things the way they are done now. Trusted systems do not interfere with free speech any more than some people's watching cable television prevents other people from watching free (sponsored) television, or any more than editorial control of newspapers prevents others from writing letters or sending e-mail.

2. Barlow says that viewing digital works on trusted systems will be like "paying to drink wine by the sip -- forever." This is nonsense. Digital contracts admit a wide range of charging models, and publishers are discovering that different models work in different publishing niches. In automobile transportation some people choose to buy cars, others lease them, and yet others use taxi cabs. By direct analogy, we could buy indefinite use of a digital work, buy fixed periods of otherwise unlimited use, or pay by the hour. We could also choose to read only things that somebody else is willing to sponsor.

3. Barlow says that trusted systems will be the end of libraries. As someone who has spent many hours in libraries, I agree with Andrew Carnegie, whom he quotes. That's why I built a "loan" transaction into DPRL which maintains copyright protection when a work is checked out from a digital library, along with other kinds of transactions that mimic what we do with books -- like the "first sale" doctrine allowing us to give books away.

4. Barlow feels that the failure of widely used technology to honor copyright has not disadvantaged him any more than it has disadvantaged Bill Gates. He fails to acknowledge the actual economic workings of the software marketplace or the mechanisms of increasing returns. Dominant software providers make their money on the upgrades -- and a certain amount of piracy fosters market dominance and mind share. Thus unauthorized copying helps the big publishers and hurts the little ones.

5. Lessig finds it chilling that I would propose a licensing regime to regulate the right to read. Such a regime would be chilling -- but that's not what I proposed. With some rare exceptions, it is in society's interest not to regulate what people read. Fair-use licenses are not about reading. They are about making digital copies and derived works. The digital medium differs from the paper medium in the low costs of copying and distribution for anyone with a networked computer. This difference makes copyright practically unenforceable without technological support. Fair-use licenses are intended to preserve some of the socially useful limitations on an author's rights in copyright law, while addressing the greater risks of unauthorized copying and distribution. I invite Lessig and others to think through the change in relative risks in the digital medium and to come up with fair-use proposals of their own that address the balance of interests of stakeholders.

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

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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