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A Critique of Barlow's _Wired_ Article -- John, a rebutal?
From: David Farber <farber () central cis upenn edu>
Date: Fri, 11 Mar 1994 03:43:16 -0500
Date: Thu, 10 Mar 1994 22:26:27 -0600 From: shaynes () research westlaw com (Steve Haynes) Dave - Many of your list's subscribers will by now have read John Perry Barlow's article in the most recent _Wired_ magazine entitled "The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age." (If you have not yet read it, as users/owners/publishers/purveyors of intellectual property you _must_. His discussion is in many respects radical, will provoke much conversation, and because of his stature in matters cyberspatial will be given attention.) Nothwithstanding Mr. Barlow's stature and respect naturally due one of cyberspace's pioneers, let me offer up a critical review:* [* - this was previously published on another private, limited distribution list, mostly to check if it was robust enough to survive reading by a group of relatively sophisticated publisher- type people.] Through exquisitely crafted prose, Barlow (who gives his email address as barlow () eff org) tries to make the case that digital information brings the denouement of copyright law. His article may be reduced to a very few expositions: 1. Information in digital form differs significantly from information in print. 2. Copyright law is enforced only in the interest of those publishers who see digital information as threatening the continuation of their (print) domains. 3. The culture of the Net is presently transitioning from its "Wild West" stage to one of a pre-legal (or an a- legal) ethical society. 4. Copyright and the law of intellectual property will soon evolve into other, non-legal forms of protection of ideas _qua_ information, although Barlow gives us little hint as to what those non-legal forms of protection will be. After nearly two pages laying a very sketchy development of present-day copyright law and the essential, he claims, difference of information expressed in digital form, Barlow sets the stage with the first of several provocative passages: "[W]hen the primary articles of commerce in a society look so much like speech as to be indistinguishable from it, and when the traditional methods of protecting their ownership have become ineffectual, attempting to fix the problem with broader and more vigorous enforcement will inevitably threaten freedom of speech. The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent." Rarely have we involved in the production of copyrighted expression seen the throwing down of such an audacious gauntlet. Oddly, rather than a Robespierre urging on the digital mobs from the safety of his drawing room, I have a vision of a man exhorting the Parisian hordes to tear down the Bastille's walls while he stands atop them. Barlow, after all, has earned a comfortable livelihood and gained no small notoriety through work that has been protected under copyright. He does say that those creating digital information will be analogous to live performers who will be paid by their immediate audience for the privilege to be present, as it were, at the creation. Barlow's central mistake, however, is in trying to differentiate expression via digital form from traditional print-based expression. John Garrett has said in a prior message regarding Barlow's article, "I think he romanticizes, and misunderstands, the nature of digital communication, which he seems to characterize as approaching 'pure thought' flying around the net: 'voltage conditions darting around the Net at the speed of light, in conditions that one might behold in effect, as glowing pixels or transmitted sounds, but never touch or claim to 'own' in the old sense of the word.'" I agree. Barlow says that intellectual property now consists of pure ideas, contrary to the requirement that ideas (or information) must be reduced to "expression" before they may be copyrighted: "Since it is now possible to convey ideas from one mind to another without ever making them physical, we are now claiming to own ideas themselves and not merely their expression. And since it is likewise now possible to create useful tools that never take physical form, we have taken to patenting abstractions, sequences of virtual events, and mathematical formulae -- the most un-real estate imaginable." Copyright law states very clearly that an idea is protected at the point it is placed in physical form. That "physical form" can be digital expression. Barlow does not dispute that, yet he says that the mutability of electronic information somehow makes the expression different: "[O]ur system of copyright makes no accommodation whatever for expressions which don't become fixed at some point nor for cultural expressions which lack a specific author or inventor." This of course overlooks (or ignores) the point that fixation in electronic media is fixation for copyright purposes. Now most of what crosses the Net is of a nature that the authors/owners care neither for the niceties of copyright nor for the rights they may have in derivative versions of their writings. On the other hand, many authors conscious of the implications of their publishing on the Net -- for example, Mary Brandt Jensen and Robert Oakley -- specifically deal with the unique circumstances of Net-based writing by incorporating a limited license with their works. All this is proper under existing copyright law. Yet, Barlow says that _because_ Net-based writing is impermanent and because of what he considers a natural tendency of members of the Net culture to ignore others' legal rights, copyright law is outmoded and, at the least, must change. Change, he says, or perish. "Perhaps those who are part of the problem will simply quarantine themselves in court, while those who are part of the solution will create a new society based, at first, on piracy and freebooting. It may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place." I fear, more than anything else, Barlow reminds me of William Roper, Sir Thomas More's son-in-law, who in Robert Bolt's _A Man for all Seasons_ insists that the law of England be set aside in order to get at More's enemy, Thomas Cromwell. More, saying that it would make no difference if Cromwell were the Devil himself, asks Roper, "What would you do? Cut a great road through the law to get after the Devil?" ROPER: I'd cut down every law in England to do that! MORE: Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? ... This country's planted thick with laws from coast to coast ... and if you cut them down ... d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake." The copyright laws give substance to the rights of ownership you, I, and Barlow have in the expression of our thoughts, ideas and information. The fact that new technology may be needed to assure protection (when I want such protection) does not lessen the importance of the law in assuring that, if I need to protect my rights, I can. Barlow in fact seems to lump all of us as victims of corporate lawyers striving to maintain their livelihood by adhering to the status quo. "[D]espite their fierce grip on the old legal structure, companies that trade in information are likely to find that their increasing inability to deal sensibly with technological issues will not be remedied in the courts, which won't be capable of producing verdicts predictable enough to be supportive of long-term enterprise." In fact, Barlow in three brief paragraphs gives recognition to the three technologies that are most likely to support protection of owners' intellectual property: encryption, software envelopes, and Net-based pay-per-view interactions. He says, however, that the same grassroots impatience and revulsion that led software companies to dispense with copy protection for PC software will defeat pay-per-view technologies. He does recognize that information _value_ will determine the degree to which readers will pay or be willing to suffer inconvenience for access. "Reality is an edit. People are willing to pay for the authority of those editors whose point of view seems to fit best. And again, point of view is an asset which cannot be stolen or duplicated. No one sees the world as Esther Dyson does, and the handsome fee she charges for her newsletter is actually payment for the privilege of looking at the world through her unique eyes." ... "In the virtual world, proximity in time is a value determinant. An informational product is generally more valuable the closer purchaser[s] can place themselves to the moment of its expression, a limitation in time." What Barlow mentions nowhere is that there _is_ a world of well- protected, privately compiled and mass-distributed information already on the Net. I refer of course to the online services, WESTLAW, DIALOG, and others, who have not only depended upon traditional copyright law but upon licenses to protect their material, even though widely available since 1970. These services, however, are unlikely to open up access to their materials to the Net in general so long as problems like those Barlow mentions exist or threaten to appear. Barlow says such restrictions -- or even technological protections -- will matter little to the devotee of Net culture: "The 'terrain' itself -- the architecture of the Net -- may come to serve many of the purposes which could only be maintained in the past by legal imposition. For example, it may be unnecessary to constitutionally assure freedom of expression in an environment which, in the words of ... John Gilmore, 'treats censorship as a malfunction' and reroutes proscribed ideas around it." ... "[T]here is a fundamental problem with a system that requires, through technology, payment for every access to a particular expression. It defeats the original Jeffersonian purpose of seeing that ideas were available to everyone regardless of their economic station. I am not comfortable with a model that will restrict inquiry to the wealthy." Barlow says that the same culture that led to widespread hacker penetration of copy protection schemes (and now various hacker penetrations of the Net itself) will lead to defeat for technology-based copyright protection. If this is in fact the case, however, I fear the Net will remain the domain of low- intensity information such as items in the public domain, new E- journals, and the ubiquitous email for which signal-to-noise ratios are distressingly low. So, in the end, Barlow gives us (1) a romanticized vision of information in cyberspace, (2) a prediction that chaos will reign where copyright should pertain, and (3) a conclusion that no solution exists for this state of affairs. I'm with Sir Thomas: give me the law. Steve Haynes * Stephen L. Haynes Internet: shaynes () research westlaw com * Manager, WESTLAW Research MCI Mail: 221-3969 * & Development Compuserve: 76236,3547 * West Publishing Company Phone: 612/687-5770 * 610 Opperman Drive Fax: 612/687-7907 * Eagan, MN 55123
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