INFO: Copyrights (was Hypertext)

Lee Daniel Crocker (
Tue, 4 Mar 1997 17:01:29 -0800 (PST)

As usual, I have more ideas and opinions than free time to write
them all down, but this present discussion of the pitfalls of the
present design of hypertext systems brings up an issue I've been
meaning to tackle in better detail, so I'll take a first pass now.
The problem with creating the ideal hypertext system we imagine is
not a technical one of backlinks and permanent storage, but a legal
one: eliminate copyrights, and you eliminate the problem.

First, the very idea of back-links is unworkable and must be
abandoned. Information providers want to, and have every right to,
control precisely what they present to the consumer, down to the
last pixel. Freedom of speech is an inviolate human right. As
much as we might like to have all speakers subject themselves to
critical review, there's no way we can force them. The problem, then,
is that if you want to express a refutation of an expressed point of
view, how do you reference it?

...The Vision

Simple: include a snapshot of the other text in yours. No need to
worry that the other site might change, or that they may move; just
copy those bytes onto your server and you're done. He can then copy
your bytes onto his server for counter-rebuttal, and so on. Everybody
gets to say everything he wants, counter every point made by the
others, and each presents it all exactly the way he wants. Since the
providers are each using only their own resources, they are not
dependent in any way on the other sites, or other parts of the net.
Each has complete individual freedom and individual responsibility.

How does the consumer find these refutations? That's easy: because
he /wants/ to find them, they are valuable. Consumer attention is a
precious commodity, as the experience of traditional media should have
taught us. Information providers will find means to advertise their
information to the consumers who want it, because it will pay them to
do so. Whatever mechanism the market demands--whether it be search
engines, push-channels, ordered indexes--that will be what the market
provides. The individual info-merchant is still free to reject the
standards if he wants, and free to tailor his presentation, but he is
still bound by the supply and demand of consumer attention.

The more and more people who produce information, the more valuable
becomes /selection/, /evaluation/, and /collection/ of the kinds of
information the consumer wants. That will be the hot-ticket item in
the information economy: not the information itself, but the work of
collecting it, sorting it, and bringing consumer attention to it.
Those who are best at collecting the kind of information I want will
get more if my attention, and will therefore be more profitable. The
exact details of how the consumer will sell his attention aren't that
critical: advertising is certainly the most obvious, but direct
sponsorship of information selectors is another. The TV medium uses
both models well. Broadcasts are paid by advertisers, specialty
cable channels by subscribers who want specially selected programs.
There is no reason to think both models won't work on the Net. For
general searching, I'll settle for free sites like Yahoo! with ads.
For more detailed information, I might want to subscribe to a service
that provides special content, reviews, etc.

...The Catch

What prevents all the info-selectors from using all the information
from any source they can find is copyright law: the idea that if you
didn't "create" the information (leaving alone for the moment what
that means, exactly), you can't present it, even if you make no claim
to have created it. You can't modify it, translate it, change media,
add commentary to it, or do anything else (other than the extremely
limited "fair use") without the "creator"'s permission. Those who
"create" information (I'll leave off the scare quotes from now on, but
don't assume that I have conceded that info creator is an objectively
definable thing) have complete control of it, even its manifestation
in other minds or other media.

It is not legal, therefore, to copy an essay onto your server for the
purpose of refuting it; you must instead reference it by pointing to
the author's chosen means of presentation. If the author chooses only
to sell paper, then you cannot put his words online. If he chooses not
to link back to you, then your link to him will be one way only. In
any case, your ability to make your point about his words is crippled.

...The Excuses

Copyrights are justified by claiming that authors would have no
financial incentive to create works without it. They create the
legal category of "intellectual property", and treat the use of
information like the use of real property.

It is true that "property rights" are a man-made concept, and the
concept can be applied to intangible things like names, contractual
privileges, etc. But the concept was created for dealing with a
concrete, objective fact of existence: scarcity. If I "use", say,
an apple, I have thereby prevented anyone else from using that
apple. An idea, say, "apples are edible", is different. If I use
this idea, I in no way prevent others from using it. Likewise, if
I choose to give my neighbor this idea, I still have every bit of it
that I had before I gave it to him. If I give him a real apple, I
no longer have it. Names and privilege /are/ scarce: if I knowingly
use my neighbor's good name to defraud another, I have materially
harmed his ability to use that same name, by damaging the trust he
has established with others. If I give a privilege--say concert
tickets--to another, I can no longer go. But information itself is
not scarce in this way.

Because there is this real, objective difference between physical
property and ideas, our use of the concept of property rights on one
does not necessarily imply that they should be used for the other--
especially since the motivation for the creation of property rights
is precisely that difference--scarcity. Yet still, the rhetoric of
itellectual property still uses real property words: presenting
someone else's information--even with full credit--is called "theft",
because we have defined it as such.

There is a sense in which intellectual property does protect a
scarce commodity, but it is not the ideas themselves, but rather the
market for them. If Fred writes a book, and John copies it and sells
the copy (honestly, i.e. without claiming that it is original), then
the market for Fred is reduced. But this is precisely analagous to
real property, for which we deny protection: if John sells apples
from his orchard, he reduces the market for Fred's apples, but we do
not grant either of them a legal monopoly just because he planted the
first tree or made the first claim to the market. We only protect
Fred's and John's individual capacity to produce--not their capacity
to sell--because that reduces competition and leads to an inefficient
market. Yet somehow we think Fred "deserves" his monopoly on the
sale of his book, but not the sale of his apples.

...The Refutations

In a world without copyrights, Fred still has many ways to take
advantage of the marketplace without our handing him a monopoly from
day one. (1) He will be first to market. This is a tremendous
advantage to any product in any industry, and because Fred continues
to write, /every/ book he writes will be first to market. (2) He has
sole right to his good name and consumer attention. He can charge
for autographs of his book, or charge for the privilege of answering
questions about it, or joining a mailing list on it, and only he can
sell "authorized" editions non-fraudulently. (3) He has his creative
mind and knowledge of the subject. He can charge for appearances
and Q&A sessions; he can sell preview-privileges to future works; he
can sell his labor in adapting the book to other media (which he
would presumably be better at than anyone else); he can even sell
his writing skill to adapt other works ("Mr. King, could you write me
a horror-movie screenplay for Gilligan's Island?"). (4) He can sell
his consumer attention to other info-sources ("Max More's best of the
net."). (5) He can choose to withhold information, and only reveal
it to those who sign volutary non-disclosure agreements. There are
probably many more.

Without copyrights, every author simply uses whatever information he
can get from any source; he doesn't need to bother with researching
legal minutiae and filling pages with credits. Schools can run books
though the old Xerox instead of being extorted for $50 for Calculus
texts that haven't changed in decades. Software would evolve faster
because everything could be reused (and distribution could still be
controlled by cryptography and contracts).

One might still object that even with the new methods of marketing
and the newly lowered costs, it still would not be enough incentive
for an author, or that it still seems immoral to sell another man's
ideas. But isn't that the situation now? Isn't every story built on
cultural foundations we can't possibly find all the sources of? Why
is it that Hank Aaron has to keep hitting home runs to make money,
but the network who filmed #715 gets to keep making money on its one
piece of camera work for years into the future? And why must we
encourage authors at the expense of others anyway? Is an author
somehow more "noble" or more "valuable" than a bookbinder that we
deny the latter's right to earn an honest living for the benefit of
the former? How is that different from any other subsidy?

Finally, in the hypertext world I imagined above, competition between
info selectors for consumer attention would probably be so fierce that
it would encourage them to seek authors that could create valuable
content faster than their competitors, making good authors more valuable
as both creators and as selectors. They might even sign contracts
with their competitors to respect each other's "exclusives" for their
mutual benefit, thereby creating voluntary copyrights among themselves.


I am convinced that copyrights are nothing but subsidies to authors,
based on nothing more objective than snobbery and convention, and that
an economy without them would be fairer, more efficient, and produce
/more/ creative output, not less. It would also go a long way toward
solving the hypertext problem if there were no barriers to any
presenter arranging others' works in new media without legal barriers,
and if information presentation evolved an efficient market seperate
from the one for information creation.

Lee Daniel Crocker <>