A Critique of Barlow's _Wired_ Article -- John, a rebutal?

[David Farber <farber () central cis upenn edu>]

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
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