John Perry Barlow on Intellectual Property
I have always mistrusted John Perry Barlow and his cohorts at the Electronic Frontier Foundation. Barlow is inevitably identified as a “lyricist for the Grateful Dead” in the brief bio that follows most of his print publications, and as a fan of rock music, the immense popularity of the Grateful Dead is a phenonomenon whose logic has always escaped me. But more to the point, the EFF’s free speech absolutism has always been problematic for me. Their virulent opposition to various government attempts to restrict accessibility to Internet pornography by legal means may have been well founded given the shoddy legal construction of the proposals, but so far as I can tell they’ve shown virtually no interest in making a contribution to solving a problem whose grave effects, I believe, are not properly appreciated by the public at large. And as Nicholas D. Kristof points out in a recent New York Times editorial, there are, in the post-Sept. 11 era, increasingly compelling reasons to take steps to restrict access to information about the manufacture weapons of mass destruction. “As Justice Arthur Goldberg declared in a 1963 Supreme Court case,” Kristof writes, “the Constitution ‘is not a suicide pact.’”
Of course, it’s fair to ask whether the genie has not already been let out of the bottle, and this is one of the things that Barlow does in his important (and already quite dated) essay “The Economy of Ideas: Selling Wine Without Bottles on the Global Net.” Barlow writes: “It may be unnecessary to constitutionally assure freedom of expression in an environment that, in the words of my fellow EFF co-founder John Gilmore, ‘treats censorship as a malfunction’ and re-routes proscribed ideas around it.” Or, conversely, it may be pointless to constitutionally restrict freedom of expression in such an environment.
At any rate, this line of inquiry is of secondary concern to this site, which currently tries to focus on making sense of the contributions free software can make toward a more humane information technology world.
Barlow’s essay is broadly concerned with the irrelevance, in the digital era, of the existing legal framework for protecting intellectual property. Barlow’s inability to envision a legal alternative compels him to postulate that “ethics and technology,” and not law, will provide the basis for “the ordering template of society.” What Barlow terms “ethics” appears to refer to a broadly agreed-upon set of principles for conducting social transactions within a community, without recourse to enforcement by law. Whether or not this is a philosophically accurate definition of what ethics really is, I don’t know (if a more enlightened reader would care to comment, please do). But what seems likely is that Barlow’s vision is excessively optimistic.
At any rate, Barlow’s observations about the failure of legal measures to address the problem of software piracy are useful for our purposes. Barlow summarizes one of his principle conclusions:
…unbounded intellectual property is very different from physical property and can no longer be protected as though these differences did not exist. For example, if we continue to assume that value is based on scarcity, as it is with regard to physical objects, we will create laws that are precisely contrary to the nature of information, which may, in many cases, increase in value with distribution.
And it is perhaps a broad recognition–however unconscious–of this reality that lead to the current regime in which “software piracy laws are so practically unenforceable and breaking them has become so socially acceptable that only a thin minority appears compelled, either by fear or conscience, to obey them.”
“>Attempting to sell a piece of software as a discrete entity, something akin to say, a book, appears to be a doomed enterprise. The consequences, of course, go far beyond software, but have profound effects on virtually any creative undertaking:
Digital information, unconstrained by packaging, is a continuing process more like the metamorphosing tales of prehistory than anything that will fit in shrink wrap…. As we return to continuous information, we can expect the importance of authorship to diminish. Creative people may have to renew their acquaintance with humility.
Despite all this:
“And yet, the software business remains a very healthy sector of the American economy. … Why is this? Because people seem to eventually buy the software they really use. Once a program becomes central to your work, you want the latest version of it, the best support, the actual manuals, all privileges that are attached to ownership. Such practical considerations will, in the absence of working law, become more and more important in important in getting paid for what might easily be obtained for nothing.
Essentially, in the coming economic dispensation, information technology professionals will do well to seek their fortunes not in selling shrink-wrapped, copyright-protected editions of their programs, but in developing relationships with the users of their products through support, up-to-date documentation and enhancements (accessible, perhaps, via a subscription website), etc. “Information economics,” Barlow declares, “in the absence of objects, will be based more on relationship than possession.”