Sad about the District Court decision in Hachette vs. Internet Archive; not just because of the ruling against the Archive, but because of many people’s reaction to it online. People have strange intuitions, not just about the status of the law, but also of how it progresses. There’s some tut-tutting that an august institution like the Archive should be wandering this close to the spirit of the law, instead of playing safe.
But the Archive wouldn’t exist if it was playing safe: if you ever wonder why there is only one of them (and there should be thousands of them), the idea of just going out into the Web, and recording everything, is not playing it safe. Of course, nobody thinks that now, because we live in a world that is erected on the edifice of freely available search-engines, and a presumed right for us all to take data from the Net, and use it for many different things. But that is not the model that sit in the heart of a maximalist IP theory — or indeed, most jurisdictions that don’t allow for ad hoc exemptions and limitations to copyright. Under that model, everything is copyrighted, the moment it is fixed, and you don’t get to see it, or touch it, digitally, without negotiating a contract with the rightsholder.
That’s such a violently different world from the physically-bound, pre-digital world of copyright. I don’t need to contract with anyone to read a physical book; I don’t need to beg permission to lend someone else that knowledge.
Now, I know that alternative model of digital copyright seems to be also at odds with reality to many: that we can make as many copies as we want of non-physical data, give them to everybody, at zero cost, by default, and to stop that from happening, we must adopt a set of encumbrances that seem barely capable to stem that flow. But really, these are the limits of intellectual property as a model for either providing income, or effectively restricting the supply of knowledge
So we have a choice: it’s unclear what the middle-ground is, and whether there is a middle-ground at all. I used to think that this was the nature of digital technology — that there was no clear perimeters to how much copying, or how much transformation or derivation was tolerable, and that because of that, we’d live in an increasingly enforcement-heavy world, as one side attempted to draw a line in the sand, even as the sand shifted and writhed underneath them. To throw out another metaphor: that the punishments and locking-down would escalate, like the impossibility of making real advances in World War I led to a tragic no-man’s land. People would copy for zero cost on their do-anything-machines, so lawmakers and rightsholders would increase the fines, and lock down the machines by force of law.
I still think this is a fair outline, but I’m beginning to think maybe intellectual property was always like this. Fixing ideas onto a scarcity-based economic model, like nailing jelly to a wall.
What makes me sad, though, is even as the copyright maximalists attempt to create a government-enforced property system out of metaphors and thin air, people who claim to want justice, join forces with them. Or not so much justice, but fairness.
I talked a little about this with Nathan Schneider today in The Decentralists, my interview thing that will soon be a podcast. Nathan noted that some people benefit unduly from public goods — in his example, venture capitalists extracting value from open source — and if we wanted to have a fair system, then we needed to work out a way to stop this.
I don’t think that way at all: in many ways, public goods are always going to have free riders, freeloaders, pirates and exploiters. That’s why they’re public goods! We can’t exclude people from benefiting from them. But that doesn’t mean we need to work out how to fence them away and ration their benefits, based on who gets them. What we need to do is to work out how to free-riding from undermining the commons itself.
We are, as a species, peculiarly sensitive to cheats and slackards: it inspires our most immediate and profound sense of ire. It’s amazing how much brain matter we silently attend to calculating who has done what in our social circle, and how many fights start from disagreements about that assessment.
The positive version of that is that it inspires in us a desire for justice, and for equity. The negative side is that it breaks our brains when we have resources that everyone can keep taking from, without reducing the total amount.
If you just decide to walk away from the idea that free-riders must be punished in a digital space, you often get so much more done. One of the ways that the Internet beat every other digital networking project is that the rest of them were bogged down in working out who owed whom: protocols and interoperabilty foundered because so much of it was spent meticulously accounting for every bit. Same with the Web. It just got hand-waved away.
I think that some of the worse ramifications of the modern digital space is because of that hand-waving (the vacuum got filled by advertising, most notably), but it certainly wasn’t all bad. And, most importantly, ignoring who was free-riding on who did not immediately kill the service, as it collapsed under the weight of parasites. It turned out that, in many cases, you could still manage to maintain and create a service that was better than any pre-emptively cautious, accounting-based system, even when it had to deal with spammers or pirates or those too poor to theoretically justify their access to the world’s most precious information under any less generous model.
I think you can construct justice and equity as an exercise in carefully balancing the patterns of growth: those worse off get the benefit, those already well-off don’t get to fence it away from the rest. What I don’t see as useful is to zero-sum everything, just to make the calculation tractable. If you can work out a way to make everybody better off, we should allow it, without trying to judge whether those who benefit are worthy. The Internet Archive, clearly, makes everybody better off, in almost every axis. And it did that, even in a world where many such things are seen as too risky or destabilising to be considered.
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