Tangled in the Threads

Jon Udell, August 9, 2000

Regulating the Net

Last week the newsgroup discussion turned to books with crypto-socio-technological themes. Randy Switt kicked off a lively thread with a reference to Neal Stephenson's Cryptonomicon, available in paperback since May. Here were some other recommendations in the same vein:

Peter Hess:

For a lot of very interesting reading regarding the history of cryptography in general and the history of WWII cryptography specifically, I can recommend two books by David Kahn, _The_Codebreakers_ and _Siezing_The_Enigma_. The first is a general history of cryptography, very well written and well-researched (984 pages + 160 pages of bibliography and end notes). The second covers a good bit of the war of disinformation that went on that Stephenson refers to in his book.

Mark Wilcox:

I enjoyed Simon Singh's _The Code Book_. Traces the relation of cryptography and history from Mary Queen of Scots through today.

For myself, I've just finished Lawrence Lessig's Code and Other Laws of Cyberspace. It's an amazing book that challenged me to rethink a set of interrelated issues: privacy, identity, trust, anoynmity.

Although Lessig is a law professor, his book is really about the next-generation architecture of the Internet. That architecture, as I've been saying a lot lately, is up for grabs. There are big choices to be made, with profound effects.

Lessig says this too, and despite his legal background a lot of his argumentation revolves around the conventional sense of the word "architecture." He talks a lot about "spaces" -- AOL is a space, my newsgroup is a space, a MUD or MOO is a space. In the same way that architecture of real space governs behavior, says Lessig, so does the architecture of cyberspace. And depending on how these spaces are architected -- or, when he switches into legal mode, constituted -- they can allow and encourage very different sets of values and modes of behavior. Here's one fascinating observation about AOL:

There are places in AOL where people can gather; there are places where people can go and read messages posted by others. But there is no space where everyone gathers at one time...there is no public space where you could address all members of AOL...there is no space large enough for citizens to create a riot.

A key point throughout the book is quite at odds with conventional wisdom about the Internet. There is a strong tendency, he says, to assume that the openness and anarchy that have charactized the Net are its essential properties. TCP/IP itself is policy-neutral, just a way of connecting endpoints. The first generation of apps layered on top of the TCP/IP expressed the values of openness and benevolent anarchy. So we assume this is the "natural" state of the Net. But Lessig warns otherwise. He warns that the Net is only a substrate on which anything can be built. And he argues that e-commerce will almost certainly drive the Net toward an "architecture of control."

A lot of the debate about Napster et al., meanwhile, proceeds from the assumption that the Net inherently resists control, and will always be able to "route around damage" (read: censorship, control).

During the Senate hearing on Napster, Senator Charles Schumer asked the panel about Lessig's contention that the Internet can and will evolve the code needed to control piracy. Gene Kan, of the Gnutella project, argued that there always was and always will be piracy on the Net -- that it's unstoppable in principle.

(The hearing, by the way, featured this comic interlude: Kan: "Back in high school, my friends and I were all software pirates." Schumer: "When was that? Last week?")

Others took the opposite position, but didn't sound very sure of themselves.

I suppose it comes down to a matter of degree. Yes, Kan's right that there will undoubtedly always be piracy. But it's also likely that an emerging "architecture of control," though imperfect, will neverthless prevent a lot of piracy, particularly if there are reasonable alternatives.

Lessig argues that there are four constraining forces:

  1. the market (e.g., the price of music)
  2. social norms
  3. architecture (e.g., digital IDs, digital watermarking)
  4. law

What's most threatening about Napster is the way it alters social norms -- "training a whole generation to think piracy is OK" as someone said. Driving the phenomenon is a market that's out of whack -- the music industry really ought not to have doubled the price of music on us when they went to CDs. In this context, we have a Net architecture that seems, for the moment, to put piracy beyond the reach of law. But that may not be as true as many would like to believe.

James Power:

It is often assumed that if a law is difficult to enforce, it will not be passed and if it is, can be ignored. This opinion is very prevalent in web-dom.

OK. Fast forward. Congress declares a law that says all ISPs must block sites that are on such and such a list. Further, they cannot host them. Any company that owns a search engine that wants to do business in the U.S. cannot return references to these sites.

Gnutella is interesting, but not really effective. Files may be scattered among millions of PCs, but legal responsibility is not. If a law says you cannot serve a specific page, and the consequences are severe enough, very few people will be willing to put themselves at risk by hosting it on their computer.

Phil Hunt:

If you go through anonymisers, and encrypt everything, how will anyone know you are running Freenet?

Alan Shutko:

Laws which are difficult to enforce are passed all the time. (Look at speeding, or drug laws.) That doesn't help you if they decide to enforce it in your case.

Sure, people will still do [these proscribed things]. And as long as they don't do them too much, and stay below the legal radar, they'll probably be OK. But share with too many people, or come to the notice of someone who doesn't like you, and you get slapped down like a fly.

Unless courts say that running completely unmonitored, unlogged, services for anyone in the random public to use for any possibly illegal use is non-negligent and responsible (which I doubt), you can get nailed. I don't think a defense of "Well, I tried really really hard not to find any illegal content going through my server" is going to cut it.

Copyright protection at what price?

As Phil Hunt eloquently points out, we seem to be faced with two bad choices:

There are two futures possible for society. Either the authorities get the sorts of powers to monitor the flow of speech that would make Beria and Himmler green with envy, or copyright cannot effectively be enforced.

I prefer the second outcome, and if some artists lose income because of it (I don't think many will lose much), then that's a price worth paying.

How high is that price, anyway, wonders Franck Arnaud?

The idea of copyright (or patents) is that the state grants an individual the legal monopoly on an intellectual product (in the sense that the state will use its own monopoly on the use of force to help the copyrightholder enforce his rights). In exchange of the cost to society of protecting an individuals' monopoly (cost of law enforcement, and cost of the protected stuff not being freely available), individuals are encouraged, by the prospect of monopoly profits, to produce valuable material that would not otherwise be produced.

Then the question is: does society really benefit from that scheme? It may have made sense in the 19th century but today? Are the benefits real? Would people stop producing valuable intellectual goods without copyright law?

For James Power, the answer is clearly yes:

For a couple of years I lived in West Africa. Copyright on music is essentially not enforced. I could go into any bus station or roadside market and there was someone dubbing tapes. (I'm sure they are now burning CDs.) These were not hidden away, they operated freely and openly.

The result was that any musician or band that became successful left the country. They simply could not afford to keep going on club dates alone. A lone musician might make it for a while, but the most popular WA music is dance music, and that requires a band. Even if a lone musician could make it, it would condemn him or her to a life on the road. Why not go to Europe or the U.S. where copyright is enforced and they could make a living from their labor?

(Side note: I wonder if the popularity of world music wasn't caused by a general broadening of the western worlds musical taste, but by a flood of truly world class musicians hawking their wares. Essentially, you can go to a club in London, pay 5 pounds to get in and watch the Nigerian equivalent of Carlos Santana. Or of course, you could pay those same 5 pounds to see some mediocre British band with perhaps one decent musician out of four.)

Precisely. Now consider the case of a writer. A musician has, at least, the option of live performance. But it is not very interesting at all to watch me sit in front of my monitor, slackjawed, sometimes typing and sometimes just staring.

Lessig reminds us of the roots of the copyright -- and patent -- systems. He quotes Thomas Jefferson on the inherent shareability of intellectual property, and on the value of such sharing:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody... The exclusive right to invention [is] given not of natural right, but for the benefit of society.

In short, intellectual property is special because it can be shared without any diminishment. But there is still a need for intellectual property rights.

Lessig again:

...we protect intellectual property only to ensure that we create a sufficient incentive to produce it. 'Sufficient incentive,' however is something less than perfect control. And in turn we can say that the ideal protections of intellectual property law are something less than the ideal protections for ordinary or real property.

This difference between the nature of intellectual property and ordinary property was recognized by our Constitution, which in article 1, section 8, clause 8, give Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Note the special structure of this clause. First, it sets forth the precise reason for the power -- to promote the progress of science and useful arts. It is for those reasons, and those reasons only, that Congress may grant an exclusive right -- otherwise known as a monopoly. And second, note the special temporality of this right: "for limited Times."

The balance that intellectual property law traditionally strikes is between the protections granted the author and the public use or access granted everyone else. The aim is to give the author sufficient incentive to produce. But built into the law of intellectual property are limits on the power of the author to control use of the ideas she has created."

Rights and accountability

Lessig, fascinatingly, worries less than most that piracy will disincentive creators of intellectual property. He worries more than most that the coming "architecture of control" will, rather, eliminate the many kinds of fair use which have traditionally counterbalanced copyright protections. While many worry that technology makes copyright too weak, he worries that it will make it too strong. At a moment in history when many assume that technology has just about done away with any hope of copyright enforcement, this argument seems contrarian. It depends on the assumption that the Net will evolve in the direction of trusted systems, strong identity, and granular rights. I think that's a good direction. And I think copyright should be enforceable. But it's also it's imperative to preserve the balance between copyright and fair use.

In striking that balance, we find that issues of identity, trust, privacy, and anonymity are all deeply intertwined. Searching for perspectives, I was led from Lessig's book to David Brin's The Transparent Society which stakes out another contrarian position -- that surveillance is not necessarily a prerogative of "the authorities." In some imaginable future, what he calls "two-way transparency" might protect liberty and counteract injustice. (A draft of the first chapter of the book appeared as a Wired Magazine article.)

Here's some of the flavor of Brin's argument (which, of course, fair use doctrine allows me to quote here):

Whenever a conflict appears between privacy and accountability, people demand the former for themselves and the latter for everybody else.

Brin takes for granted that technologies of surveillance will become powerful and ubiquitous in years to come. And he's not just talking about the ways in which cyberspace remembers the data trails you leave when you pass through it. He's talking about increased monitoring of real space too, using ever-smaller, ever more-powerful surveillance cameras. Against this backdrop, Brin argues:

Given a choice between privacy and accountability, I must sadly conclude that there is no choice at all.

Privacy is a highly desirable product of liberty. If we remain free and sovereign, then we'll have a little privacy - in our bedrooms and sanctuaries. As citizens, we'll be able to demand some.

But accountability is no side benefit. It is the one fundamental ingredient on which liberty thrives. Without the accountability that derives from openness - enforceable upon even the mightiest individuals and institutions - freedom must surely die. Can we stand living our lives exposed to scrutiny ... our secrets laid out in the open ... if in return we get flashlights of our own, that we can shine on the arrogant and strong?

Or is privacy's illusion so precious that it is worth any price, including surrendering our own right to pierce the schemes of the powerful?

Whew! This is deep and scary stuff. But it helps me to understand why I've felt, for some years now, that I am less concerned about my ability to act anonymously in cyberspace, and more concerned to be able to reliably proclaim my identity, and to expect others with whom I have dealings to reliably proclaim their identities. What's this got to do with intellectual property? In the case of Napster, it might mean that we'd agree not to hide behind pseudonymic screen names, but would do our file sharing openly, in our own names, and would be held accountable for our use of copyrighted material. In return, Brin's argument suggests, we would be able to "watch the watchers" -- that is, monitor the degree to which copyright owners honor their obligation to allow work to move freely, in the public commons, under fair use doctrine.

Brin's book expands on a remark that Scott McNealy was taken to task for: "You have no privacy, get over it." For Brin, that's a less gloomy prospect than it is for many people. He thinks accountability and privacy are more or less mutually exclusive, and of the two, he values accountability more highly. If it comes down to that choice, I do too. Will it? We'll soon see.

Jon Udell (http://udell.roninhouse.com/) was BYTE Magazine's executive editor for new media, the architect of the original www.byte.com, and author of BYTE's Web Project column. He's now an independent Web/Internet consultant, and is the author of Practical Internet Groupware, from O'Reilly and Associates. His recent BYTE.com columns are archived at http://www.byte.com/index/threads

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