January 24, 1994 Creating Network Redistribution Rights -- Does Electronic Information Really Want to Be Free? David R. Johnson For some time, a debate has raged between the high priests of copyright orthodoxy ("nothing is broken; copyright always adapts") and a growing group (copypunks?) who say we need a new form of intellectual property for electronic networks ("it's broken, and we're glad"). Everyone agrees that current US copyright law still applies to materials after they are put in electronic form. Everyone agrees that many users regularly ignore that fact. Everyone agrees that copyright could be the basis for many subtle and varied licensing agreements that allocate just those rights and rewards needed to achieve an optimal balance between the needs of authors, publishers and readers. No one can point to any online environment (except, perhaps, Counsel Connect!) where such a licensing scheme has been effectively implemented and is welcomed and obeyed by all concerned. While licensing against the background of copyright would seem, in theory, to offer extremely effective and flexible tools to control (and liberate) electronic intellectual property, it is hard to use these tools in practice. Electronic messages now regularly fly across systems -- to "users" who have no contractual dealings with the system on which they originated. It is expensive and time-consuming to negotiate limited licenses, and no one reads the electronic box before opening. Not all electronic copying is infringing, because "fair use" is allowed. But no one knows quite where the boundary is, so it's hard even for the law-abiding among us to know when you need a license. The temptation to go near or even over the line is very great, because the cost of making a copy (in dollars and effort) is tiny, and the act of sending a copy to a friend makes the user a more valuable online citizen. (That's why Counsel Connect always tries to insist on obtaining licenses that allow free use of the Fotocopy feature.) Finally, since unauthorized, infringing copying is often hard to track down and often doesn't do much harm in any given case, it is impractical to enforce the originator's copyright by litigation (except in a few cases brought to set an example). So the satisfying theory of current copyright and licensing law just doesn't operate well in practice, for reasons that don't have much to do with a hacker mentality or a population of kid users not adequately schooled in ethics. My dad, an inventor, always said: "if you can't fix it, feature it." If we can't enforce copyright in cyberspace, why not get rid of it? What would really happen if we declared cyberspace a "copyright free zone"? Suppose, just for a moment, that we preserve copyright as applied to physical printouts but rule that all electronic copying is permitted. (Since Congress could probably never pass such a statute, we might have to create a new legal jurisdiction to accomplish this -- but let's set aside how we get there and discuss what would happen if we could.) First, redistribution of information across the networks just to those people who need it would increase dramatically. Sysops could relax about being held accountable for copyright infringement by their users. (The recent, chilling Playboy case, discussed elsewhere on Counsel Connect, could cause some sysops to crack down on a free flow of communications among users, because it recognizes no defense for sysops based on lack of knowledge that their system contents are infringing.) The copypunks would rejoice -- everyone would now be free to add value to any information, whether by altering and republishing it or by sending it only to those people or electronic places where it would be most valuable. Copyright purists would protest, of course, claiming that any such scheme would cause all creative authoring and all value-enhancing publishing activities to come to a screeching halt. Why would anyone upload anything to the net, they would ask, if it could be appropriated immediately by anyone else? But there may be good answers to these latter objections (the sky might not actually fall) at least for information published in small, regular doses that is valuable partly because it originated from a reliable source. Anyone who has original material (or first publication rights) that can be metered out over the networks on a regular basis could demand any payment she might want from those to whom the information was first distributed. So the price of getting right up to the faucet for a periodically-published information stream could be set high enough to reward the author and reflect the value to those downstream from the recipients. Those few who buy new information at the tap could be required, by effectively enforceable contracts, either (1) not to redistribute wholesale or (2) to pay a royalty for downstream distribution that effectively substitutes for access to the tap -- on pain of losing their access rights. What makes this scheme enforceable (in contrast to efforts to protect discrete electronic artifacts) is that continuous publication creates an ongoing relationship, with the faucet still firmly in control of the author or his publisher. The intellectual property of copyright is not what enables this scheme -- it is enabled by the author/publisher's physical control over the source of the material. The electronic information would be free, but timely and reliable access to it would not. There would be no need to rely on encryption schemes that complicate system compatibility and fail to win user acceptance. I'll admit that this proposal doesn't solve the problem of protecting large single works -- a novel or a movie -- and we may need to rely on encryption to make these marketable. But much of the confusion surrounding copyright on the networks applies to newsletters, subscription-based e-mail products and other acts of authorship that do have repeatability. At least as to those, controlling the source rather than prohibiting reproduction might substantially enhance creativity -- as electronic publishers vie for the works of authors whose regular contributions will enhance the value of their upstream faucet. The requisite legal change is not complex -- just a redefinition of "copying" not to include electronic redistribution. So long as we keep copyright in place for physical reproductions, we'll save a lot of trees.