When courts make decisions in civil matters like this, they usually take three factors into account. First, there are the statutes, or the laws themselves. Second, there is the case law, or relevant prior cases. Finally, there are policy considerations, that the courts consider when bringing down a decision. In the case of intellectual property in digital media, things are considerably more murky. Patent and copyright law has considerable difficulty dealing with computer software which is simultaneously mathematical formula, (unprotected) process (patentable) and expression (copyrightable.) How the statutes should be applied is far from clear. Perhaps as a result of the murky state of the statutes, the case law is also unclear. In Lotus v. Borland, the original case was decided in favor of Lotus on the basis that Borland had infringed non-literal elements of Lotus' design. However in the appeals court, that decision was reversed, arguing that Lotus' menu structure was not protected. (Using a rather quirky analogy to VCR buttons.) The case has been appealed to the supreme court which will hear the case in the spring on 1996. There is certainly no clear interpretation that the case law can offer. The final consideration that guides a court in its decisions are the policy considerations. Policy Considerations are expected to be the key consideration of the Supreme Court when it decides the Lotus v. Borland case in the spring, and policy considerations appear to the basis behind statements like the NII white paper, and Barlow's essay Wine without Bottles. Both of those essays attempt to cast the intellectual property controversy into a certain paradigm, and attempt to articulate a set of rules that establish their vision of the issues as the way in which the issue is judged.
In a recent article for Wired about a consulting firm called the Global Business Network , Joel Garreau made the argument that predicting the future with any degree of accuracy has become an increasingly futile endeavour. More profitable is scenario planning, where an author or an organisation attempts to envision the possible scenarios that could result from the state of the world today, and perhaps decide which scenario would be most desirable (according to the interests of the client) without specifically embracing one scenario as the one which will actually occur. This paper makes an attempt to do just that with the Intellectual Property debate, by examining the two leading paradigms, those suggested by the NII white paper, and by Barlow. In both cases, the original articles are assessed, the paradigm is fleshed out, and assessed for both the problems it addresses, and those it does not. Although concerns over software patents and those over copyright have traditionally been considered separately, I have purposefully neglected to separate them. The distinction between software and digital expression is becoming increasingly blurred, and I think it makes more sense to examine both issues at once as both Barlow and the White Paper do.
The NII white paper takes what Samuelson terms the high- protectionist view of copyright issues. The NII White Paper was written by the Working Group on Intellectual Property Rights of the National Information Infrastructure Task Force. Samuelson argues that the task force is heavily biased in favor of the concerns of the industries that would benefit from taking a high protectionist stance, in other words, "major motion picture producers, sound recording companies, and certain print publishers." Samuelson argues that the White Paper makes radical changes to the state of copyright law, all while pretending that the changes are only minor clarifications of existing laws. Among other things, Samuelson argues that the White Paper attempts to hand control of every facet of a copyright to its owner, beyond those they are afforded in other media like print, using the justification that any viewing of a digital work requires the user to make a temporary copy in memory, and this is infringing, unless it is licensed, and thus authorised by the copyright owner.
Additionally, Samuelson argues that the consumer is deprived of the "first sale" rights which they have for other media. In other words, if I purchase a book, after I am finished with it, I have the right to give it away, sell it, or trade it to anyone I please. Samuelson states that common sense would suggest that such a right should logically extend digital media as well. There is a key difference, however in digital media which Samuelson fails to address. If I own a book, and then I sell it to someone, I am no longer able to view it myself. However, if I am sent a book electronically, then sell my copy to a friend when I am done with it, there is nothing to stop me from selling my copy again to someone else, or rereading it. It is certainly arguable that this would reduce the value of the work to the author, and thus diminish the incentive for creation, and this is a point that Samuelson never addresses in her paper.
There are many other changes the white paper attempts to make. For example: fair use is essentially eliminated by reducing the level of what can be licensed from a copyright owner to a very low level, and then arguing that there is never fair use, if a copyright owner would rather license the work for such a use.
The white paper would encourage the use of active copyright management software attached to every piece of copyrighted material. Such software would presumably actively announce a use of a copyrighted work so that the copyright owner could charge the customer. However, no effort is made to address the privacy issues involved. Furthermore, the white paper would make it a crime to write or use any software or device whose primary purpose was to circumvent the copyright management software.
The white paper would also attempt to hold service providers liable for any infringement that their users perform, while in no way addressing how a service provider should go about such an enforcement.
The white paper includes suggestions for training children from kindergarten through college on how to correctly not infringe on a copyright. Samuelson terms the philosophy as "Just say yes to licensing."
Samuelson goes on to detail the administration plan for forcing the white paper's international acceptance, and how the White Paper's suggestions would represent a significant departure from the current paradigm of copyright, using examples from case law that the white paper completely fails to mention.
Something the Samuelson does not address, but is nevertheless well covered by the white paper, is the issue of patents. The white paper contains a section dealing with software patents, and it deals with them in a very similar manner to copyrights. Patent protection of software is warmly embraced as a means of fostering innovation in the industry the section starts off with the statement "The primary goal of the patent system is to encourage innovation and commercialization of technological advances."
In the world envisioned by the White Paper, copyright owners will have absolute and exclusive control over every facet of a copyright's use. The digital equivalent of cutting out magazine articles, time-shifting television programming, making audio tapes for a friend, and even giving a book to a friend when you are done with it will all be either illegal, or licensable activities. Users will be charged every time a copyrighted work is used or viewed. Furthermore, the owner of the work will receive detailed information about how often, when, and under what conditions a customer views a copyrighted work. Direct marketing information will reach new levels of accuracy and detail, as the information that copyright management software gathers is inevitably passed on towards the marketing divisions of media companies.
Software patents will proliferate widely and wildly. Smaller software companies will find it more and more difficult to stay in business, as the cost of doing existing patent searches increases, and their ability to obtain favourable licensing agreements without a patent library to cross-license diminishes. Large software companies will be more stable in their dominant position in a marketplace, as intellectual property concerns will make it more difficult for a competitor to displace an existing and popular product, without infringing on some aspect of the established work. Software industry innovation might slow down as patent and copyright infringement suits bog down a larger and larger proportion of the market. It is certainly arguable that software litigation slows down companies that are involved in it. Before all its litigation, Lotus was the No. 1 spreadsheet on the market, and Borland was No. 2. The litigation isn't even finished and Microsoft has stolen the market. It is certainly possible that Lotus was distracted from developing its software, by concentrating on protecting its property. The real danger of course, is not just litigation but the fear of litigation. If a software company does not develop a product out of fear that it will be taken to court, then the state of the market has suffered in a less visible, but just as tangible way as if an existing product were litigated. Interoperability of software products will definitely decrease as companies will have little incentive to offer licenses of their patents for competitors to build a competing product, and reverse compilation of a competing software product to ensure compatibility will be illegal.
The cryptography used to enable the copyright management software will be based upon escrowed encryption technology, as is outlined in the White Paper. Escrowed Encryption Technology is by nature more open to abuses than un-escrowed encryption: escrowed encryption relies on the escrow party being able to keep a secret. Unescrowed encryption does not. If online service providers are held liable for the infringements of their users, then there will certainly be a greater temptation for the provider to abuse the keys if they are in any position to do so, although the white paper does not make it clear who will hold the escrowed keys.
The world which the White Paper lays out for us, despite claims to the contrary is rather different from the one we see today. Copyright owners enjoy greater protection for their work than they currently do. This, presumably would provide an additional incentive to create copyrighted works, providing a public benefit. However, it appears that the levels of protection that are currently afforded copyright holders is certainly great enough to encourage them to create such works. The additional incentive offered by the new power over works by their owners may be of little value to anyone other than stockholders in the company. This scenario also forces the public to give up certain very significant rights they have previously enjoyed, which have already been enumerated. It is quite obvious that this scenario is very appealing to copyright owners, but what is not so clear is whether the public, were they fully informed, would be so supportive.
Of the examples stated, Barlow's work examines the issues at their most fundamental level, by attempting some analysis of what information is. Barlow begins by observing that intellectual property law has always protected the vessel of an idea, but not the idea itself. A book is protected, not the ideas within; to use his analogy, the bottle is protected, not the wine. Modern technology he argues has reduced the bottle to some arbitrary and completely meaningless form so that our economy promises to be increasingly conducted ideas themselves, rather than their physical manifestations. In the old days, we could fool ourselves into thinking that what we were buying and selling was really physical objects, but as our currency becomes increasingly vaporous, it becomes more and more important to examine the nature of information itself.
Barlow then proceeds to make some observations about the nature of information. Barlow makes three main analogies: Information is an activity, a life form and an activity. Some of these seem a little far-fetched, but Barlow makes some important observations.
Barlow argues that information is an activity. Information is experienced, not possessed. No matter how information is what happens when it is decoded from its storage format by the human mind. The physical manifestation of the information is not the information itself. To use Barlow's eloquent words, "Information is the pitch, not the pitcher. The dance, not the dancer." Information cannot be transferred, only propagated. In other words, to give someone an idea, in no way diminishes the possession of that idea oneself. It multiplies.
Barlow argues that information resembles a life form. While this seems a little bit of an outlandish statement, Barlow makes an interesting point. Like a life form, information grows, persists, evolves, expands and perishes. Presumably the point being made, is that to attempt to prevent that kind of natural flow of information is to kill it altogether. Additionally, information has a mutative quality. Barlow points to oral histories, where the story is constantly evolving as an example of this. Intellectual property law runs counter to this natural impulse of information, by attempting to give the original author authority over what the final product looks like, and while it may be possible to impose such rules when information is bound to some physical form like books or movies. Preventing mutation is as difficult and as foreign in digital media as it is in oral traditions.
Barlow argues that information is a relationship. One of the key things that Barlow illustrates is that information is of no value on its own, but only in the context of a human mind that finds it valuable. Some esoteric data of great value to an archaeologist may mean nothing to me, while this paper may be very important to me, but mean little to that archaeologist. Additionally, the value of information tends to degrade with time.
After a rather lengthy and insightful analysis of what information is, Barlow makes an attempt to analyze what this should mean for the realities of intellectual property law, something which Barlow admits, he doesn't really know. Drawing on his previous assertions, Barlow argues that information is most at home in an environment which is more fluid and dynamic, and the landscape will adapt to such a form, where the value associated with information correlates most closely with where its value truly lies, as has Barlow had previously discussed. Asserting the value of information will be, Barlow argues much more about relationships than possession. The enabling technology, Barlow argues, will be cryptography.
Presumably, in Barlow's vision of the future, patents will suffer similarly to copyright law. If litigation remains as unpredictable as it currently appears, it may well fall out of favor. Rather value will be asserted by factors like innovation, speed to market and reputation. For example, in Barlow's vision, Lotus should not have bothered suing Borland or Mosaic. Rather than allowing itself to get bogged down in legislation that may have cost it leadership of its field. Rather, it should have concentrated on innovation and support. While Mosaic software was peddling its clone of 1-2-3, Lotus should have forged ahead with new versions, and new features. It could have maintained its leadership of the market by moving quickly and staying one step ahead of the competition. If its prices remained low, it were the innovator in its field, and it treated its customers right, no on would have any incentive to switch to a clone product. Already, we are seeing some evidence of this. Netscape communications product takes all the technology they develop and strongly encourage others to use it. They see this as an advantage rather than a problem. By creating technology and then giving it away they can maintain control of the market. The way they remain on top is to move so fast that no one can clone their product fast enough to be a threat.
Copyright and Patent are not likely to ever go away completely. If a copyrighted work is directly copied and resold on a visible and mass scale, it is likely always going to be in the interest of the copyright holder to take legal action. What distinguishes Barlow's vision is that copying of non-literal elements or re-use in alternative contexts is likely to become increasingly acceptable as market forces slowly punish those who attempt to encumber their work with copy protection and reward those who promote a less rigid landscape.
Potential problems are easy to spot in Barlow's model. For example if protection of non-literal elements of software slowly degrades, what happens when cloned software hits the market so rapidly, that it is unclear in the public mind who the original author was. What incentive will authors have to put development effort into complex user interfaces if such work can immediately and economically be reproduced with very little delay. What will drive the market.
How will a copyrighted work maintain any value whatsoever if its elements may be freely copied and reproduced in alternative contexts? Take Star Wars as an example. Suppose George Lucas had produced the original Star Wars, in a world where copyright protection had declined. Upon noting its popularity, it is completely probable that other authors would have created additional works based upon the original characters and premise. Barlow's model argues that the public will wish to maintain its relationship with Lucas as the original author of Star Wars, and what's more, they will be prepared to pay for the privilege of hearing new Star Wars stories directly from the source. I am not so sure. When something is as popular as Star Wars, it is likely that additional stories, characters, and plots would have proliferated to such an extent that it would be difficult to remember just what the original material was. If non Lucas authorized films had been released in the years after the first film, would fans of the original movie have gone to see them? If so, as the conflicting plots and character developments accumulated, would the value of the work have been diluted? Would there be a great incentive for an author to create a new and profoundly popular premise if they knew that it could immediately be copied, modified and obscured by others?
I find it unlikely that Barlow would support either of the scenarios I have just described. Despite the relaxation of intellectual property laws, I think even Barlow would agree that some base level of intellectual property protection is necessary, for the same reasons that the founding fathers included it in the constitution in the first place. To provide authors and inventors an incentive to share their works with the public, thus maximizing the public good.
A world without intellectual property protection of any kind may well degenerate into one that is essentially dominated by noise, and an audience will have to situate itself close to an output stream in order to obtain value. While this is an intriguing notion, it is a very alien one, and we might not readily recognise a world that existed in this state.
At the same time, a world in which intellectual property protection is extended to the ultimate level is not desirable either. Innovation, especially in fast moving industries like software would likely suffer, as restrictive patents and bans on reverse engineering hamper a company's ability to offer competing compatible products. Furthermore, the industry is likely to be dominated by large corporations that have the muscle to hire patent and copyright lawyers, and the amount of room for the small scale intellectual property manufacturer will quickly dwindle.
Naturally, the course the world actually takes will be some medium between these extremes. The previously mentioned essays "Intellectual Property and Software: A New View" and the League for Programming Freedom's document "Against Software Patents" both advocate a position somewhere between the two extremes.
The software industry is a great example of how an industry behaves when the limits are removed. Manufacturing costs are very low, development times are incredibly short, the investment required to get into the field is tiny, and very small firms control remarkably dominant positions in their field. One of the things we should be trying to avoid at all costs is screwing that up. Any procedure that requires litigation or even the threat of it drives up costs astronomically and forces the small manufacturer from the market. The American impulse has always been to tend towards under regulation rather than over-regulation. Perhaps we would do well to follow that advice now. If there is one thing I am not worried about, it is the threat of the people not being able to find a way to make money.
 Barlow, John Perry. Selling Wine Without Bottles: The Economy of Mind on the Global Net. http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/ idea_economy_article.html Previous version printed as "The New Economy of Ideas, WIRED 2.03  Working Group on Intellectual Property Rights, National Information Infrastructure Task Force. Intellectual Property and the National Information Infrastructure (Sept. 1995). http://www.uspto.gov/web/ipnii/  Garreau, Joel. Conspiracy of Heretics. WIRED 2.11 http://www.hotwired.com/wired/2.11/features/gbn.html  Samuelson, Pamela. TIGHTENING THE COPYRIGHT NOOSE: Why You Should Be Worried About the White Paper on Intellectual Property Rights and the National Information Infrastructure. Unpublished.  League for Programming Freedom. "Against Software Patents" Communications of the ACM, January 1992.  Randall Davis, Pamela Samuelson et. al. Intellectual Property and Software: A New View. Unpublished. To appear in Communications of the ACM.