The first question that needs to be answered is, ``Is there any need to re-analyse the ethical situation? Can our current legal/ethical framework handle the challenges posed by modern communication technology?''
In this chapter, I'm going to cruise through history and extract an overview of the development of the concepts that the legal system has developed to handle various issues as they arose. We will re-examine the history of content distribution and the history of copyright principles, and draw some connections between them, both traditional and novel. We will examine how we lost track of the ethics of copyright and got stuck in the trap of believing that ad-hoc, expedient solutions were instead immutable wisdom of the ages. In the end it should be clear that the introduction of the Internet and associated technologies constitute a qualitative change in communication technology that will require extensive further refinements
This is a high-level summary, not an enumeration of the thousands of details added over the years. The intention is to lay the groundwork for a demonstration of the deep flaws in the current system. Because the conventional view freely mixes laws and ethics, this chapter will not go to great lengths to separate them either.
I'm going to assume that the readers of this essay are already familiar with both the justifications for intellectual property and free speech, and the basic historical reasons for the creation of each of those, and do not need Yet Another (Probably Oversimplified Anyhow) Explanation of why Gutenberg's printing press more-or-less caused the creation of the concept of copyright. (Again, this is already long enough without rewriting that yet again.) Therefore, since you know the basics of the conventional view of copyright, we can focus on synthesizing a new and better understanding of communication issues, rather then re-iterating conventional understandings.
Information is used loosely in this essay to mean anything that can written on some medium and transmitted somehow to another person. Writing, sculpture, music, anything at all. Information can be communicated, which will be more carefully defined later. Yes, this is broad, but there is a rule of thumb: If it can be digitized, it's information.
Note that digitization is very, very powerful. While few people may own the equipment to do it, there is no theoretical difficulty in digitizing sculpture, scent, motions, or many other things people may not normally consider digitizable. Even things like emotionscan be digitized; psychiatrists ask their patients to do so all the time (``Describe how anxious you're feeling right now on a scale of 1 to 10.''). While something like a written letter may be fully analog, one can generally create some digital representation that will represent the letter satisfactorily, such as scanning the whole letter and sending the image file.
With that out of the way, we can discuss the history of information transmission, also known as ``communication''.
Reduced to a sentence, Gutenberg's printing press's primary effect on information reproduction was to make the production of words relatively cheap. For the first time in history, the effort required to make a copy of a textual work was many times less then the effort required to create the original copy, thus making the production model of ``Make an original copy of a book, then print thousands of copies of it quickly for a profit'' practical.
Ever since then, technology's primary effect is to lower the cost of various production models with various media until they are practical for an increasing number of people. Every major challenge to intellectual property law has come from this fundamental effect.
Let's create a graph to look at how various parameters affect the ability to do something profitably, examined over time. (Though not strictly in chronological order as it is often difficult to place a date on when a given technology became truly practical.) Here's our first graph: Pre-Gutenberg, fig 1.
You'll note there's only one black-dot, which is hand-copying material. You'll also note that the graph has no axis labels. This is because there are, in reality, a lot of things that could go on those labels, like cost-per-copy (extremely high), time per copy (a lot), number of customers waiting for product, etc., and there are even more as time goes on, so we're just going to pretend that the graph is two dimensional so we can fit it on the paper. I'll talk about some of the noteworthy parameters as we go through, and list them in the margin notes.At this point, there was no such thing as copyright. Copying was an unmitigated good for a society. Numerous documents have disappeared from history because they weren't copied, now existing only as obscure references by other works which were successfully copied.
Gutenberg's invention added another possibility. By lowering cost-per-copy and time-per-copy by orders of magnitude, it became practical to run thousands of copies of a book and sell each of them at a lower price then a single hand copy would cost. A significant time investment was required to set up each run, though, and that became a new constraining factor. With this new ease of replication, the first rumblings of copyright law began, but it was still a very simple domain, so the laws were simple, at least by modern standards.
Another side effect of Gutenberg's invention was the ability to reach an unprecedented number of people with the same message, because of the sheer number of copies that could be cranked out and delivered to people, rather then requiring the users to come to one of the rare copies of the content. This introduces the notion of the scale of communication; throughout history, we have always treated communication reaching many people quite differently from private, 1-to-few communication. Perhaps one of the most important effects was that such technology made it much easier to spread propaganda. Before such easy printing, propaganda required a network of people to verbally communicate it to the targets; printed propaganda, combined with wide-spread literacy, enabled much smaller groups to effectively use propaganda, which has obvious large effects on the fluidity of a society and the intensifying of common discourse.
As the printing press technology improved, people could set up content for the press faster. The lowering of the cost-to-setup enabled the invention of newspapers (and by extensions all periodicals), which are basically cost-effective periodic books. A new practical content distribution solution appeared, and it too affected the law. People wanted to use this new platform for political purposes, but the centralized nature of the printing press made it easy to shut down if a powerful person disliked what the newspaper said. To counter this, our ethical concepts of free speech and the freedom of the press, initially synonymous, were created. In America we even get this guaranteed as part of the first amendment to our constitution; your country may vary.
Printing was a major improvement over hand copying, but it is not a perfect information distribution system. The most obvious problem is the need for physical distribution of the printed materials, which was a major part of the cost. The necessities of daily/weekly/monthly distribution to hundreds or thousands of points for periodicals within a subscribing area required a huge infrastructure investment, and non-periodicals needed some infrastructure too, though it wasn't as demanding. There also need to be enough readers (amount of use) to make it economical to print a given newspaper.
You'll note the hand-copying blob is still there in figure 2. That's because it was every bit as practical to hand-copy things before the printing press as it was after; that almost nobody chose to do it for book-sized communications means that they felt they had a better choice, but the choice was still there. To this day, hand-copying is still the preferred method of communication in many smaller domains, such as jotting down addresses, phone number, and simple notes. Rarely, if ever, does a truly new form of communication completely displace an older one.
The postal service is not often considered as an important advance in the context of intellectual property, but in communication terms it is the earliest example of a information distribution service that was capable of reliably sending a single copy of something from one single person to another single person. On a technical level, the modern Internet functions much more like a fifty-million-times-faster postal system then the more-often used metaphor of a the telephone system, so study of the postal system can potentially provide insight into the Internet as well.
Whether or not this pre-dates Gutenberg's press mostly depends on what you call the first ``postal service''. Ancient China had a decent one, as did Rome, but the scale and universality of the modern postal services places them in a different league entirely. The forces of technology have given postal services the ability to serve more people and allow them to send more types of things, culminating in that greatest of postal service triumphs, commercially viable junk mail.
That may sound funny, but it's serious, too. It takes an efficient system to make it worthwhile to simply send out a mailing to ``Boxholder'', and have any hope of it paying off economically.
We often ignore the media in which normal people can communicate with other normal people on small scales, because the large ones that we are about to look at look so much, well, larger that the postal service seems like it's not worth considering. It's an important advance, though, and has empowered a lot of political action, direct sales, even entire industries that might have otherwise never existed. And it has caused the creation of its own fair share of laws and principles. The postal service is primarily interested in the transportation of objects more then ``information'' per se, but laws have been developed for strictly communication-based crimes, such as using the postal service to send death threats.
The key things a postal service needs is cheap, reliable transportation and customers... lots and lots of customers. It needs to be economical to process each of these point-to-point transmissions, and this means you need to either make up the cost in scale as traditional postal services do, or charge your customers higher prices as courier services do.
Radio and television (which at the level I'm covering them are similar enough to treat as two aspects of the same technology) are entirely different beasts.
With radio and television, content could be broadcast quickly, even immediately (``live''), to any number of people around the country or the world. The customer had to invest in technology capable of receiving these transmissions, but the general public found radio and television more then compelling enough to invest billions of dollars in. Fast forwarding to today, we find that content with broad appeal can be broadcast profitably, news-type content can be broadcast multiple times per day (entire channels can be dedicated to what is essentially the same hour of content, like CNN), increasing the frequency of transmission to ``hours'' from ``days''. ``Niche'' content can also succeed on a smaller scale, though there is still a relatively high break-even point. The schedules of broadcast content started its intricate dance with the American public as each started to schedule their lives around each other.Radio and television also broke free of the tyranny of the written word. Radio was one of the first technologies that could handle sound directly (the only competition are records and when you consider that a truly viable technology is a judgement call), and television introduced the even more exciting world of video. It was a long time before this truly strained copyright law, as it was not until the 1980's that the mass-market consumer had any easy, practical means of reproduction of video (via the VCR). Concern about the equivalent of recording from a radio did not exist until the 2000's (the ability to record a digital stream directly from a digital radio), because the mass-market consumer did not have the technology to widely reproduce and distribute a recording with any quality. So we can see that one of the pressures on copyright law is the availability of technology that can produce or reproduce content in a given medium.
Radio and television have their own constraining factors too. The expense necessary to put together even the simplest of professional-quality programs is quite high, which introduces the concept of ``cost of entry''. In theory anybody could start up a television program or network; in practice, it is vastly more difficult then simply having a printing press print 1000 copies of something. Large transmission towers must be constructed, electromagnetic spectrum must be allocated (extremely limited in television before the advent of UHF), and a large staff must be hired to run this station. Thus, only a limited number of large networks could afford to take full advantage of the medium. This has changed with the wide-scale use of cable, and its corresponding ability to transmit low-quality programs without an expensive transmission tower, allowing ``public access'' channels (probably only due to Federal mandate, though it's hard to know for certain), but the networks still dominate.
The issue of what we now call ``monetization'' also appeared, brought clearly to mind by the inability to charge for a physical artifact like the printed word. I am aware of three basic viable models: The advertising-based model, the government tax model used in the UK, and a subscription model where an encrypted signal is broadcast and special decoders must be rented (only feasible relatively recently). This also interacts with the economies of scale; you can't make money advertising if only three people are watching your show, whereas forced taxation allows you to target smaller audiences, as long as you can get government funding. An echo of this problem can be seen on the Internet, except the advertising solution isn't working as well.
Of all of the media discussed in this chapter, I think radio and television have been most deeply affected by the way the industries monetize the medium; one need only compare a day's programming from the BBC or PBS to NBC to see the differences.
The retail distribution networks have put content into the hands of ``the general public''. It has become economically viable to distribute content by having the customer come to some retail outlet that orders many copies of various kinds of content and allows the customer to purchase them and take them home. Much like the postal service, this required the invention of reliable transportation and a large enough customer base to sustain the retail outlet.
And much like the postal service, only more so, this has affected the law by affecting everyone, not just some select group of people with convenient access to content in a copyable form. Perhaps more then anything else, the developments implied by the large scale distribution of content in retail stores, put together with the need for consumer technology such as VCRs to use this content, has brought this down to the level where the decisions made regarding these issues will affect everybody in their day-to-day life. What can I do with this CD? Why can't I send my friend a quote from an electronic book?
The existence of a large-scale distribution network for some kind of content, like sound recordings, tends to imply some sort of standard medium for distributing that content. As more people own players for that medium, the technological pressure to create technology to allow the mass-market consumer to also create content on that medium increases. Thus, a few years after the introduction of the CD-ROM, we get mass-market CD writers. DVD writers arrived even more quickly then CD writers did, relative to the initial introduction of the medium. A large-scale retail distribution method by its very existence tends to create market pressure for the creation of technology that will be capable of allowing the user to, among other things, violate copyright laws.
Telephones are much like the postal service. In general, telephones are hardly different at all from speaking face to face, and in general there is little special treatment required to handle them. But I do mention them because of the nuisance issues that the law has had to deal with with regard to telemarketers, scammers, and other people abusing the medium for personal gain. We will find the principles inherent in the laws laid down for telephones useful in some other similar circumstances later, most notably the issues surrounding ``forced'' communication, such as e-mail spam.
We can go ahead and roll fax machines into this category too; their biggest impact on the law was also a ``forced communication'' issue, where junk spams could cost the recipient money for toner and paper. As such it is very similar to normal telephones, when it comes to the legal issues.
Our final diagram (cleaned up for convenience) has a number of isolated splotches
, and a large number of candidates for what could be considered to be axes:
What that means in practical terms is that when a legal pronouncement was made about television (``A given company may only own two television stations in a given market''), it had little or no impact on the other communication technologies.
The separation isn't completely perfect, if you try you can come up with some things that affected multiple types of communication at the same time. But even some of the most basic ethical principles were often defined differently for different media; witness the difference between slander and libel, for instance, virtually identical high-level concepts that differ only in whether they occur in spoken or printed word.
I'd also like to point out that there's a lot more on that diagram then I believe most people are considering since they tend to limit themselves to merely mass media like television and the Internet. By adding in some of the other technologies, we'll find that we can actually find a simpler, more general pattern that applies even after the Internet comes into existence, by focusing not on the technology but on the patterns of communication itself.
I believe that in the period between around the 1950's (1940's if you are willing to fudge a bit on the retail distribution issue) and the late 1980's, a time period of thirty to forty years, that there were no major technological developments that truly changed the landscape as described above. This is certainly a bit of a judgement call, as things like the Xerox copier appeared1, but I'd say that those were refinements to existing law, not truly new stuff. Even when tape technology was introduced, both audio and video, the difficulty of copying analog tapes accurately precluded large-scale copyright violations and the consequent pressure on the law, even if it did prompt the now-notorious Boston Strangler comment by Jack Valenti:
``I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.'' - Jack Valenti, President of the Motion Picture Association of America, Hearings before the subcommittee on Courts, Civil Liberties and the Administration of Justice, 1982. Transcript available at http://cryptome.org/hrcw-hear.htm .Thus, for forty or fifty years the law had been revised and refined in Congress and with international treaties such as the Berne Convention, and clarified by our court system, until there was hardly any mysteries left about what was legal and what was not. That's long enough for a complete generation or two of lawyers and lawmakers to come and go; this has the unfortunate effect of convincing people that the current system is the only possible system and there will be no major changes necessary. Veneration of the current system has reached a quasi-religious status, where questioning the current system, or even questioning whether we should continue to strengthen the system (question the ``meta-system'', as it were), gets one labelled a heretic.
11.1So here's the trillion-dollar problem:
Our final diagram has lots of isolated splotches here and there, looking totally independent. Rather then taking the time to truly map the domain of discourse and look at all of the issues in a coherent way, laws and judicial decisions exploited the independence of the media types, and each individual segment got its own laws. The laws were informed by the principles of intellectual property law and certain guarantees of rights, but only ``informed by''; deviation was seen as harmless or even good, since it helped match the law to the real world better. Thus, we have created a legal system that in practice consists of a lot of special cases and a very few defining principles.Despite the inelegance of such a system, it worked, it was well-defined, and while large in size, well understood once you've absorbed all the information on a given topic.
It is truly unfortunate that it did work; it's given us some horrible legal habits.
The Internet's effects on law can be understood by consulting figure 8 (with apologies to those who are printing this out to read it).
Here's the ``problem'': The Internet is extremely powerful technology, and is only getting more powerful. There isn't a single axis of our diagram that hasn't been significantly affected by the Internet. Cost of entry? Believe me, if this was 40 years ago you would not be reading this, because I could never afford to self-publish this physically, and I would simply have never written this. Transportation? It doesn't get any easier then sitting in your own home and accessing the world. Scale? Sometimes people accidentally send email to tens of thousands of people when they intended to only send it to one person; that's how easy large-scale communication is on the Internet.
Remember when I defined information? ``Basically, if it can be digitized, it's information''? The Internet is all about the transmission of information. When considered in the context of the rest of the computer revolution, which has digitized everything, from simple words to video to interactive games to, well, everything, the true effect of the ability to transmit information in all of its forms becomes visible: The Internet allows every model to be viable economically, all at once!
Want to create a movie for the enjoyment of you family members (and nobody else) over the Internet? No problem, people do that all the time. Publish music to the entire world? Yep, we can do that too. Write an e-mail to Grandma? Yep. Write an e-mail to every one of the thousands of employees of Intel (Intel vs. Hamidi http://cyber.law.harvard.edu/openlaw/intelvhamidi/index.html) almost as easily? Can do.
The Internet in a period of just a few years has taken each of the bubbles that we saw in the previous section and rapidly expanded each of them until they all touch, overlap, and envelop each other. For instance, creating a video for an audience of two is possible because the Internet expands the capabilities of a consumer to have much of the distribution power of a major television network to send someone a video. On the other side, the Internet expands the television studio's viable scales of production, usually limited only to the ``ultra-large'' scale, to include the ability to make truly economical microcontent available. Similar things have occurred in the radio domain, and entire sites have indeed sprung up in an attempt to make a profit off of this, such as Live365.com, which assists people in creating what are essentially radio stations.
The DMCA2 is providing another example of this kind of crossover. It is probably safe to say that the DMCA, specifically the anti-circumvention-device clauses, were only intended to protect movies, music, software, and other traditional media. Because it is excessively broad and poorly worded, it has been twisted to prevent people from buying ``unauthorized'' printer ink refills3. On the other hand, through some serious sophistry it has been found not to prevent people from manufacturing compatible garage door openers4. To prevent abject absurdity requires extreme effort on the part of the judge, and the result is still far from logically rigorous; instead it smells like an attempt to continue to justify a law even in the face of obvious absurdities.
One could hardly imagine a more thorough way to challenge the traditional communications frameworks. As you recall, the important thing about the diagram I developed in the previous section was that all the sections were isolated, which became an unspoken assumption in the rest of the legal discourse. To put the problem succinctly, the problem with the current legal system is that the foundational assumption that the legal domains are independent is no longer valid, which has invalidated all laws built on that assumption.
We cannot simply patch around this problem, because the system is already a patchwork quilt and you can't continuously patch patches. From day one, laws were made without regard for the other communication domains so contradictions and simple conceptual mismatches between the domains are the rule, not the exception. The very principles upon which the practical system was built have been shown lacking. We must fix the problem at a deeper level.
This also explains the ethical drift that has occurred over the last sixty to eighty years. While hammering out the earliest versions of copyright law, it was critical to create an ethical framework for thinking about the issues. But once the system is built, it is easy to treat the system as the goal and forget about the original ethical foundation that it was built on. Forgetting the true foundations of the system was made even easier by the fact that there weren't very many true challenges to the system; adding one more domain may look exciting at the time but the excitement is contained within that domain. It is easy to see with only a little study of the origins of intellectual property that the mistaking of means for ends is nearly complete in current intellectual property law and trends. Only a small fringe group discusses the ethical issues any longer in terms of responsibilities and the basic goals of the intellectual property legal machinery; the vast majority of the discourse is in terms of the rights of the owners, and protection of rights, and often even the ensuring of profit, which is far removed from the original reasons given for our current system.
Let's look at the diagram again, but remove the black which represents viable activities. See diagram 9.
You'll note that the law no longer covers the complete domain of activities anymore. This presents some major problems, as people such as MP3.com have found out. As a way of branching out, MP3.com attempted to create a business where they would create high-quality MP3 files of thousands of CDs (at the time, it was technically challenging to create a good MP3 from a CD, as evidenced by the notoriously spotty quality of files downloaded from the original Napster), and when people proved to MP3.com that they owned the CD, MP3.com would give them access to the prepared MP3 files. MP3.com figured this would not be an issue because they made the customer prove that they already possessed a legal copy of the song or album they could obtain. The courts found that MP3.com was distributing music files, however, which requires a license that MP3.com didn't have. Subsequently, that service has been shut down.
This is a perfect example of what the modus operandi of the legal system has been up to this point: To try to extend all of these little circles outward until they cover all the scenarios that are important at the moment. In this case, the courts decided that distribution of music in this manner was the same as distributing new CDs to the customers. Unfortunately, because each of these sets of laws have been designed with any number of hidden assumptions based on the domain that they were created for, there are unresolvable conflicts everywhere these laws overlap.
For instance, consider ``sending digital video over the Internet''. In early 2000 in Australia, the part of the government charged with licensing television broadcasters briefly considered trying to require anybody in Australia who wants to transmit streaming video over the Internet to acquire a broadcasters license.
Notice that if one only considers the point of view of those familiar with television, this requirement not only makes perfect sense, it shows a good understanding of how the growth of the Internet could affect television. It is probable that an Internet site in a few more years could broadcast streaming video twenty-four hours a day, seven days a week, at television qualities to television-station sized audiences, effectively gaining all the capabilities of a television station. In only a few more years, this capability will exist for everyone. Obviously, if a country wants to regulate what can appear on television, the country will not want to allow such ``stations'' to bypass the decency laws of that country just because it isn't a ``television station''. Thus, it was proposed that the bureau should consider requiring streaming video websites to meet the licensing requirements of a television station. Do not think I am mocking this idea; from the point of view of television regulation, this was an unusually forward-thinking idea, especially for the year 2000.
Fortunately, it was rapidly struck down... because when look at this with anything other then a television-centric viewpoint, it quickly degenerates into absolute absurdity. Does Grandma need a full-fledged broadcasting license just to post streaming video of her grandchildren's birthday party for the father who's on a business trip on the other side of Australia?
And flipping it around, can we completely duck the issue of requiring a broadcasting license by not ``streaming'' video? In places where two classes of law overlap, like in this example where television law is overlapping with personal law, people will attempt to ``dance'' (see dancing http://www.jerf.org/irightsSupp/gloss/dancing.html; the ``dancers'' try to jump to whatever legal realm helps them locally at the moment, despite global inconsistency) from one legal domain to another. So, if the law specifically requires streaming video providers to obtain licenses, a provider may decide to delay the video by an hour, create several files containing an hour of content each, and allow the visitor to view those on the web in a non ``streaming'' fashion, which violates the spirit of the law, but not the letter. In every way that matters, they are still broadcasting and deriving all the benefits thereof (especially if they also just ``happen'' to schedule all of their content in advance by an hour so this delay gets cancelled), but they've either ducked the law or forced the creation of unwieldy special-case clauses in law or the policies of some entity like the FCC.
And this is only one small case involving two domains! Imagine all the wonderful conflicts you could create with a bit of creativity, many of which have already occurred, somewhere. I could go on for another twenty or thirty pages proving this point with examples, but that would exhaust us both. If there was only a limited number of these intersections, we could cover them all with special cases as we have in the past, but the combinations and conflicts are nearly limitless, with every year's new technology adding a few more.
Here, you can make your own conflicts. Pick one or two from this list: Video, music, spoken word, deriving works from (such as making custom cuts of movies), text, images, software. Pick one from this list: over the Internet, on demand, traded via peer-to-peer, with some unusual monetization system (such as micropayments). Pick one from this list: to one person, to a select group of persons, to a small number of people in general, to the general public. Odds are very good that unless you deliberately select something that already exists (``Video monetized through advertising to the general public'' a.k.a. ``Television''), you can find cracks in the law. If you select two from the first list (``Music and spoken word over the Internet to a small number of people in general'', which is personal radio station DJ'ing, which is a popular hobby in some subcultures), you're certain to find conflicts. And this isn't even an exhaustive list of possibilities, just what I came up with in a few minutes.
I think it is clear that the current approach cannot succeed. We can not address each problem that arises with a stop-gap solution; each such stop-gap adds two more conflicts to the system. Even if we stuck with it long enough to nail down each problem the hard way, and in this era of multi-year lawsuits that would take a very long time, it would still be messy and inefficient, and would still be subject to radical upheaval by a new technology. We are far better off laying a completely new foundation.
![\includegraphics[width=3in,keepaspectratio]{hand.copying.eps}](img2.png)
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