[10937] in Commercialization & Privatization of the Internet
Re: Response-to-John-Perry-Barlow (fwd)
daemon@ATHENA.MIT.EDU (Alan Sugarman)
Tue Mar 15 03:47:14 1994
Date: Mon, 14 Mar 1994 23:01:11 -0500 (EST)
From: Alan Sugarman <sugarman@panix.com>
To: Marty Salo <msalo@garnet.acns.fsu.edu>
Cc: shaynes@research.westlaw.com, com-priv@psi.com,
In-Reply-To: <Pine.3.07.9403131600.A62393-e100000@garnet.acns.fsu.edu>
Well, the real question is that Judge Preska, US District Judge of the
Southern District of New York, this afternoon at 4:45 offered to recuse
herself from the lawsuit brought by Matthew bender & co against shaynes
employer West Publishing Co. because she knew Mr. Haynes.
What is even better is that West's attys, with a straight face argued that
West Publishing Co. does not do business in New York City.
I have know learned that even though I have been paying bills to West
Publishing Co., that only West Publishing "Corporation" does busines in NYC.
Groan. Sometimes I wish I were not a lawyer.
A sugarman
On Sun, 13 Mar 1994, Marty Salo wrote:
> Mr. Haynes,
> Though I have not yet read Mr. Barlow's article in it's entirety,
> I am confident that you quoted enough of the phraseology of Mr. Barlow to
> effectively make your case (to which, after all, I have elected to
> respond). If you have the complete _Wired_, I would recommend that you
> review issue 1.1 and read an article by Simson L. Garfinkel about Richard
> Stallman, issue 1.3 for an article by Richard Stallman on record companies
> and Digital Tape, and issue 1.3 for an article by Mitchell Kapor on the
> case for a Jeffersonian information policy. Should you not have physical
> possession of volume 1 of _Wired_, they are accessible through the web,
> and a number of other ways as well.
>
> I think it's humorous that you include yourself in the "we
> involved in the production of copyrighted expression." But considering
> that you might not be writing with your own voice, it is at least obvious
> why you set out to refute Mr. Barlow. After all, if Ideas become so
> blurred as to lose their copyright bearing properties, how does one
> rationalize the exclusive rights to a page numbering system?
>
> I quote Stallman who is probably quoting the very Constitution
> of the United States itself when he says: the purpose behind our copyright
> laws, according to the Constitution, is to "promote the progress of
> science and the useful arts" not to "compensate" the producers of artistic
> expression. Granted, Stallman was talking about Record Companies, but I
> think that Stallman might have been an advocate of the position that you
> describe Barlow advocating before Barlow formed the words. But alas, you
> will not read Stallman, for he is yet another "man exhorting the Parisian
> Hordes to tear down the Bastille's walls while he stands atop of them."
> Gee, isn't the ability to de-humanize an opposing viewpoint and thereby
> rendering that idea impotent a powerful one?
>
> Arguably, your central tennant seems to be that every word spoken
> is copyrighted. No-one is born with knowledge of the universe. We all
> gain immensely from the knowledge of others. Following your logic we
> should be paying kindergarten teachers pretty heafty royalties. :)
>
> I had a bit of trouble seeing where you were going with the man
> cutting down the laws in order to get to the devil. It seems that you
> were drawing a parallel between that man and Barlow, somehow trying to
> equate the two. I say unfair, but when one realizes that you are merely
> using a literary example to ensnare the casual reader, you lose some of
> your credibility.
>
> "For what does it profit a man to gain the whole world, if he
> loses his soul in the process?"
>
>
> Marty Salo msalo@garnet.acns.fsu.edu
> Shameless Self-aggrandizing Plug: If you have access to the web,
> (G)oto [http://garnet.acns.fsu.edu/~msalo/index.html] - very useful
>
> ---------- Forwarded message ----------
> Date: Sun, 13 Mar 1994 15:37:59 -0500
> >From: Marty Salo <msalo@garnet.acns.fsu.edu>
> To: msalo@garnet.acns.fsu.edu
> Subject: Response-to-John-Perry-Barlow
>
>
> >From farber@central.cis.upenn.edu Fri Mar 11 10:36:09 1994
> Date: Fri, 11 Mar 1994 03:43:16 -0500
> >From: David Farber <farber@central.cis.upenn.edu>
> To: interesting-people mailing list <interesting-people@eff.org>
> Subject: A Critique of Barlow's _Wired_ Article -- John, a rebutal?
>
> 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
> * Manager, WESTLAW Research MCI Mail: 221-3969
> * & Development Compuserve: 76236,3547
> * West Publishing Company Phone: 612/687-5770
> * 610 Opperman Drive Fax: 612/687-7907
> * Eagan, MN 55123
>
>
