Wine Without Bottles: The Economy of Mind on the Global Net
by John Perry Barlow
If nature has made any
one thing less susceptible than all others of exclusive property, it is
the action of the thinking power called an idea, which an individual may
exclusively possess as long as he keeps it to himself; but the moment
it is divulged, it forces itself into the possession of everyone, and
the receiver cannot dispossess himself of it. Its peculiar character,
too, is that no one possesses the less, because every other possesses
the whole of it. 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 at 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
the time I've been groping around Cyberspace, there has remained unsolved
an immense conundrum which seems to be at the root of nearly every legal,
ethical, governmental, and social vexation to be found in the Virtual
World. I refer to the problem of digitized property.
The riddle is this: if
our property can be infinitely reproduced and instantaneously distributed
all over the planet without cost, without our knowledge, without its even
leaving our possession, how can we protect it? How are we going to get
paid for the work we do with our minds? And, if we can't get paid, what
will assure the continued creation and distribution of such work?
Since we don't have a
solution to what is a profoundly new kind of challenge, and are apparently
unable to delay the galloping digitization of everything not obstinately
physical, we are sailing into the future on a sinking ship.
This vessel, the accumulated
canon of copyright and patent law, was developed to convey forms and methods
of expression entirely different from the vaporous cargo it is now being
asked to carry. It is leaking as much from within as without.
Legal efforts to keep
the old boat floating are taking three forms: a frenzy of deck chair rearrangement,
stern warnings to the passengers that if she goes down, they will face
harsh criminal penalties, and serene, glassy-eyed denial.
law cannot be patched, retro fitted, or expanded to contain the gases
of digitized expression any more than real estate law might be revised
to cover the allocation of broadcasting spectrum. (Which, in fact, rather
resembles what is being attempted here.) We will need to develop an entirely
new set of methods as befits this entirely new set of circumstances.
Most of the people who
actually create soft property--the programmers, hackers, and Net surfers--already
know this. Unfortunately, neither the companies they work for nor the
lawyers these companies hire have enough direct experience with immaterial
goods to understand why they are so problematic. They are proceeding as
though the old laws can somehow be made to work, either by grotesque expansion
or by force. They are wrong.
The source of this conundrum
is as simple as its solution is complex. Digital technology is detaching
information from the physical plane, where property law of all sorts has
always found definition.
Throughout the history of copyrights and patents, the proprietary assertions
of thinkers have been focused not on their ideas but on the expression
of those ideas. The ideas themselves, as well as facts about the phenomena
of the world, were considered to be the collective property of humanity.
One could claim franchise, in the case of copyright, on the precise turn
of phrase used to convey a particular idea or the order in which facts
The point at which this
franchise was imposed was that moment when the "word became flesh"
by departing the mind of its originator and entering some physical object,
whether book or widget. The subsequent arrival of other commercial media
besides books didn't alter the legal importance of this moment. Law protected
expression and, with few (and recent) exceptions, to express was to make
Protecting physical expression
had the force of convenience on its side. Copyright worked well because,
Gutenberg notwithstanding, it was hard to make a book. Furthermore, books
froze their contents into a condition which was as challenging to alter
as it was to reproduce. Counterfeiting or distributing counterfeit volumes
were obvious and visible activities, easy enough to catch somebody in
the act of doing. Finally, unlike unbounded words or images, books had
material surfaces to which one could attach copyright notices, publisher's
marques, and price tags.
Mental to physical conversion
was even more central to patent. A patent, until recently, was either
a description of the form into which materials were to be rendered in
the service of some purpose or a description of the process by which rendition
occurred. In either case, the conceptual heart of patent was the material
result. If no purposeful object could be rendered due to some material
limitation, the patent was rejected. Neither a Klein bottle nor a shovel
made of silk could be patented. It had to be a thing and the thing had
Thus the rights of invention
and authorship adhered to activities in the physical world. One didn't
get paid for ideas but for the ability to deliver them into reality. For
all practical purposes, the value was in the conveyance and not the thought
In other words, the bottle
was protected, not the wine.
Now, as information enters
Cyberspace, the native home of Mind, these bottles are vanishing. With
the advent of digitization, it is now possible to replace all previous
information storage forms with one meta-bottle: complex--and highly liquid--patterns
of ones and zeros.
Even the physical/digital
bottles to which we've become accustomed, floppy disks, CD-ROM's, and
other discrete, shrink-wrappable bit-packages, will disappear as all computers
jack in to the global Net. While the Internet may never include every
single CPU on the planet, it is more than doubling every year and can
be expected to become the principal medium of information conveyance if,
eventually, the only one.
Once that has happened,
all the goods of the Information Age--all of the expressions once contained
in books or film strips or records or newsletters--will exist either as
pure thought or something very much like thought: voltage conditions darting
around the Net at the speed of light, in conditions which 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.
Some might argue that
information will still require some physical manifestation, such as its
magnetic existence on the titanic hard disks of distant servers, but these
are bottles which have no macroscopically discrete or personally meaningful
Some will also argue that
we have been dealing with unbottled expression since the advent of radio,
and they would be right. But for most of the history of broadcast, there
was no convenient way to capture soft goods from the electromagnetic ether
and reproduce them in anything like the quality available in commercial
packages. Only recently has this changed and little has been done legally
or technically to address the change.
Generally, the issue of
consumer payment for broadcast products was irrelevant. The consumers
themselves were the product. Broadcast media were supported either by
selling the attention of their audience to advertisers, using government
to assess payment through taxes, or the whining mendicancy of annual donor
All of the broadcast support
models are flawed. Support either by advertisers or government has almost
invariably tainted the purity of the goods delivered. Besides, direct
marketing is gradually killing the advertiser support model anyway.
Broadcast media gave us
a another payment method for a virtual product in the royalties which
broadcasters pay songwriters through such organizations as ASCAP and BMI.
But, as a member of ASCAP, I can assure you this is not a model which
we should emulate. The monitoring methods are wildly approximate. There
is no parallel system of accounting in the revenue stream. It doesn't
really work. Honest.
In any case, without our
old methods of physically defining the expression of ideas, and in the
absence of successful new models for non-physical transaction, we simply
don't know how to assure reliable payment for mental works. To make matters
worse, this comes at a time when the human mind is replacing sunlight
and mineral deposits as the principal source of new wealth.
Furthermore, the increasing
difficulty of enforcing existing copyright and patent laws is already
placing in peril the ultimate source of intellectual property, the free
exchange of ideas.
That is, when 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.
Furthermore, when Jefferson
and his fellow creatures of The Enlightenment designed the system which
became American copyright law, their primary objective was assuring the
widespread distribution of thought, not profit. Profit was the fuel which
would carry ideas into the libraries and minds of their new republic.
Libraries would purchase books, thus rewarding the authors for their work
in assembling ideas, which otherwise "incapable of confinement"
would then become freely available to the public. But what is the role
of libraries in the absense of books? How does society now pay for the
distribution of ideas if not by charging for the ideas themselves?
the matter is the fact that along with the physical bottles in which intellectual
property protection has resided, digital technology is also erasing the
legal jurisdictions of the physical world, and replacing them with the
unbounded and perhaps permanently lawless seas of Cyberspace.
In Cyberspace, there are
not only no national or local boundaries to contain the scene of a crime
and determine the method of its prosecution, there are no clear cultural
agreements on what a crime might be. Unresolved and basic differences
between European and Asian cultural assumptions about intellectual property
can only be exacerbated in a region where many transactions are taking
place in both hemispheres and yet, somehow, in neither.
Even in the most local
of digital conditions, jurisdiction and responsibility are hard to assess.
A group of music publishers filed suit against Compuserve this fall for
it having allowed its users to upload musical compositions into areas
where other users might get them. But since Compuserve cannot practically
exercise much control over the flood of bits which pass between its subscribers,
it probably shouldn't be held responsible for unlawfully "publishing"
Notions of property, value,
ownership, and the nature of wealth itself are changing more fundamentally
than at any time since the Sumerians first poked cuneiform into wet clay
and called it stored grain. Only a very few people are aware of the enormity
of this shift and fewer of them are lawyers or public officials.
Those who do see these
changes must prepare responses for the legal and social confusion which
will erupt as efforts to protect new forms of property with old methods
become more obviously futile, and, as a consequence, more adamant.
to Writs to Bits
Humanity now seems bent
on creating a world economy primarily based on goods which take no material
form. In doing so, we may be eliminating any predictable connection between
creators and a fair reward for the utility or pleasure others may find
in their works.
Without that connection,
and without a fundamental change in consciousness to accommodate its loss,
we are building our future on furor, litigation, and institutionalized
evasion of payment except in response to raw force. We may return to the
Bad Old Days of property.
Throughout the darker
parts of human history, the possession and distribution of property was
a largely military matter. "Ownership" was assured those with
the nastiest tools, whether fists or armies, and the most resolute will
to use them. Property was the divine right of thugs.
By the turn of the First
Millennium A.D., the emergence of merchant classes and landed gentry forced
the development of ethical understandings for the resolution of property
disputes. In the late Middle Ages, enlightened rulers like England's Henry
II began to codify this unwritten "common law" into recorded
canons. These laws were local, but this didn't matter much as they were
primarily directed at real estate, a form of property which is local by
definition. And which, as the name implied, was very real.
This continued to be the case as long as the origin of wealth was agricultural,
but with dawning of the Industrial Revolution, humanity began to focus
as much on means as ends. Tools acquired a new social value and, thanks
to their own development, it became possible to duplicate and distribute
them in quantity.
To encourage their invention,
copyright and patent law were developed in most western countries. These
laws were devoted to the delicate task of getting mental creations into
the world where they could be used--and enter the minds of others--while
assuring their inventors compensation for the value of their use. And,
as previously stated, the systems of both law and practice which grew
up around that task were based on physical expression.
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 which never
take physical form. we have taken to patenting abstractions, sequences
of virtual events, and mathematical formulae--the most un-real estate
In certain areas, this
leaves rights of ownership in such an ambiguous condition that once again
property adheres to those who can muster the largest armies. The only
difference is that this time the armies consist of lawyers.
Threatening their opponents
with the endless Purgatory of litigation, over which some might prefer
death itself, they assert claim to any thought which might have entered
another cranium within the collective body of the corporations they serve.
They act as though these ideas appeared in splendid detachment from all
previous human thought. And they pretend that thinking about a product
is somehow as good as manufacturing, distributing, and selling it.
What was previously considered
a common human resource, distributed among the minds and libraries of
the world, as well as the phenomena of nature herself, is now being fenced
and deeded. It is as though a new class of enterprise had arisen which
claimed to own air and water.
What is to be done? While
there is a certain grim fun to be had in it, dancing on the grave of copyright
and patent will solve little, especially when so few are willing to admit
that the occupant of this grave is even deceased and are trying to up
by force what can no longer be upheld by popular consent.
The legalists, desperate over their slipping grip, are vigorously trying
to extend it. Indeed, the United States and other proponants of GATT are
making are making adherance to to our moribund systems of intellectual
property protection a condition of membership in the marketplace of nations.
For example, China will be denied Most Favored nation trading status unless
they agree to uphold a set of cuturally alien principles which are no
longer even sensibly applicable in their country of origin.
In a more perfect world,
we'd be wise to declare a moratorium on litigation, legislation, and international
treaties in this area until we had a clearer sense of the terms and conditions
of enterprise in Cyberspace. Ideally, laws ratify already developed social
consensus. They are less the Social Contract itself than a series of memoranda
expressing a collective intent which has emerged out of many millions
of human interactions.
Humans have not inhabited
Cyberspace long enough or in sufficient diversity to have developed a
Social Contract which conforms to the strange new conditions of that world.
Laws developed prior to consensus usually serve the already established
few who can get them passed and not society as a whole.
To the extent that either
law or established social practice exists in this area, they are already
in dangerous disagreement. The laws regarding unlicensed reproduction
of commercial software are clear and stern...and rarely observed. 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.
I sometimes give speeches
on this subject, and I always ask how many people in the audience can
honestly claim to have no unauthorized software on their hard disks. I've
never seen more than ten percent of the hands go up.
Whenever there is such
profound divergence between the law and social practice, it is not society
that adapts. And, against the swift tide of custom, the Software Publishers'
current practice of hanging a few visible scapegoats is so obviously capricious
as to only further diminish respect for the law.
Part of the widespread
popular disregard for commercial software copyrights stems from a legislative
failure to understand the conditions into which it was inserted. To assume
that systems of law based in the physical world will serve in an environment
which is as fundamentally different as Cyberspace is a folly for which
everyone doing business in the future will pay.
As I will discuss in the
next segment, 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
which are precisely contrary to the nature of information, which may,
in many cases, increase in value with distribution.
The large, legally risk-averse
institutions most likely to play by the old rules will suffer for their
compliance. The more lawyers, guns, and money they invest in either protecting
their rights or subverting those of their opponents, the more commercial
competition will resemble the Kwakiutl Potlatch Ceremony, in which adversaries
competed by destroying their own possessions. Their ability to produce
new technology will simply grind to a halt as every move they make drives
them deeper into a tar pit of courtroom warfare.
Faith in law will not
be an effective strategy for high tech companies. Law adapts by continuous
increments and at a pace second only to geology in its stateliness. Technology
advances in the lunging jerks, like the punctuation of biological evolution
grotesquely accelerated. Real world conditions will continue to change
at a blinding pace, and the law will get further behind, more profoundly
confused. This mismatch is permanent.
Promising economies based
on purely digital products will either be born in a state of paralysis,
as appears to be the case with multimedia, or continue in a brave and
willful refusal by their owners to play the ownership game at all.
In the United States one
can already see a parallel economy developing, mostly among small fast
moving enterprises who protect their ideas by gettin g into the marketplace
quicker then their larger competitors who base their protection on fear
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.
But something will happen.
After all, people do business. When a currency becomes meaningless, business
is done in barter. When societies develop outside the law, they develop
their own unwritten codes, practices, and ethical systems. While technology
may undo law, technology offers methods for restoring creative rights.
A Taxonomy of
seems to me that the most productive thing to do now is to look hard into
the true nature of what we're trying to protect. How much do we really
know about information and its natural behaviors?
What are the essential characteristics of unbounded creation? How does
it differ from previous forms of property? How many of our assumptions
about it have actually been about its containers rather than their mysterious
contents? What are its different species and how does each of them lend
itself to control? What technologies will be useful in creating new virtual
bottles to replace the old physical ones?
Of course, information
is, by its nature, intangible and hard to define. Like other such deep
phenomena as light or matter, it is a natural host to paradox. And as
it is most helpful to understand light as being both a particle and a
wave, an understanding of information may emerge in the abstract congruence
of its several different properties which might be described by the following
Information is an activity.
Information is a life form.
Information is a relationship.
In the following section, I will examine each of these.
IS AN ACTIVITY
Is a Verb, Not a Noun.
Freed of its containers,
information is obviously not a thing. In fact, it is something which happens
in the field of interaction between minds or objects or other pieces of
Gregory Bateson, expanding on the information theory of Claude Shannon,
said, "Information is a difference which makes a difference."
Thus, information only really exists in the [delta]. The making
of that difference is an activity within a relationship. Information is
an action which occupies time rather than a state of being which occupies
physical space, as is the case with hard goods. It is the pitch, not the
baseball, the dance, not the dancer.
Information Is Experienced,
Even when it has been
encapsulated in some static form like a book or a hard disk, information
is still something which happens to you as you mentally decompress it
from its storage code. But, whether it's running at gigabits per second
or words per minute, the actual decoding is a process which must be performed
by and upon a mind, a process which must take place in time.
There was a cartoon in
the Bulletin of Atomic Scientists a few years ago which illustrated this
point beautifully. In the drawing, a holdup man trains his gun on the
sort of bespectacled fellow you'd figure might have a lot of information
stored in his head. "Quick," orders the bandit, "Give me
all your ideas."
Information Has To Move
Sharks are said to die
of suffocation if they stop swimming, and the same is nearly true of information.
Information which isn't moving ceases to exist as anything but potential...at
least until it is allowed to move again. For this reason, the practice
of information hoarding, common in bureaucracies, is an especially wrong-headed
artifact of physically-based value systems.
Information is Conveyed by Propagation, Not Distribution
The way in which information
spreads is also very different from the distribution of physical goods.
It moves more like something from nature than from a factory. It can concatenate
like falling dominos or grow in the usual fractal lattice, like frost
spreading on a window, but it cannot be shipped around like widgets, except
to the extent that it can be contained in them. It doesn't simply move
on. It leaves a trail of itself everywhere it's been.
The central economic distinction
between information and physical property is the ability of information
to be transferred without leaving the possession of the original owner.
If I sell you my horse, I can't ride him after that. If I sell you what
I know, we both know it.
IS A LIFE FORM
wants to be free.
Stewart Brand is generally
credited with this elegant statement of the obvious, recognizing both
the natural desire of secrets to be told and the fact that they might
be capable of possessing something like a "desire" in the first
English Biologist and
Philosopher Richard Dawkins proposed the idea of "memes," self-replicating,
patterns of information which propagate themselves across the ecologies
of mind, saying they were like life forms.
I believe they are life
forms in every respect but a basis in the carbon atom. They self-reproduce,
they interact with their surroundings and adapt to them, they mutate,
they persist. Like any other life form they evolve to fill the possibility
spaces of their local environments, which are, in this case the surrounding
belief systems and cultures of their hosts, namely, us.
Indeed, the sociobiologists
like Dawkins make a plausible case that carbon-based life forms are information
as well, that, as the chicken is an egg's way of making another egg, the
entire biological spectacle is just the DNA molecule's means of copying
out more information strings exactly like itself.
Information Replicates into the Cracks of Possibility
Like DNA helices, ideas
are relentless expansionists, always seeking new opportunities for lebensraum.
And, as in carbon-based nature, the more robust organisms are extremely
adept at finding new places to live. Thus, just as the common housefly
has insinuated itself into practically every ecosystem on the planet,
so has the meme of "life after death" found a niche in most
minds, or psycho-ecologies.
The more universally resonant
an idea or image or song , the more minds it will enter and remain within.
Trying to stop the spread of a really robust piece of information is about
as easy as keeping killer bees South of the Border. The stuff just leaks.
Information Wants To Change
If ideas and other interactive
patterns of information are indeed life forms, they can be expected to
evolve constantly into forms which will be more perfectly adapted to their
surroundings. And, as we see, they are doing this all the time.
But for a long time, our
static media, whether carvings in stone, ink on paper, or dye on celluloid,
have strongly resisted the evolutionary impulse, exalting as a consequence
the author's ability to determine the finished product. But, as in an
oral tradition, digitized information has no "final cut."
Digital information, unconstrained by packaging, is a continuing process
more like the metamorphosing tales of prehistory than anything which will
fit in shrink wrap. From the Neolithic to Gutenberg, information was passed
on, mouth to ear, changing with every re-telling (or re-singing). The
stories which once shaped our sense of the world didn't have authoritative
versions. They adapted to each culture in which they found themselves
Because there was never
a moment when the story was frozen in print, the so-called "moral"
right of storytellers to keep the tale their own was neither protected
nor recognized. The story simply passed through each of them on its way
to the next, where it would assume a different form. 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.
But our system of copyright
makes no accomodation whatever for expressions which don't at some point
become "fixed" nor for cultural expressions which lack a specific
author or inventor.
Jazz improvizations, standup comedy routines, mime performances, developing
monologues, and unrecorded broadcast transmissions all lack the Constitutional
requirement of fixation as a "writing". Without being fixed
by a point of publicatoin the liquid works of the future will all look
more like these continuously adapting and changing forms and will therefore
exist beyond the reach of copyright.
Copyright expert Pamela Samuelson tells of having attended a conference
last year convened around the fact that Western countries may legally
appropriate the music, designs, and biomedical lore of aboriginal people
without compensation to their tribe of origin since that tribe is not
an "author" or "inventor."
But soon most information
will be generated collaboratively by the cyber-tribal hunter-gatherers
of Cyberspace. Our arrogant legal dismissal of the rights of "primitives"
will be back to haunt us soon.
Information is Perishable
With the exception of
the rare classic, most information is like farm produce. Its quality degrades
rapidly both over time and in distance from the source of production.
But even here, value is highly subjective and conditional. Yesterday's
papers are quite valuable to the historian. In fact, the older they are,
the more valuable they become. On the other hand, a commodities broker
might consider news of an event which is more than an hour old to have
lost any relevance.
IS A RELATIONSHIP
Has Value and Is Unique to Each Case
In most cases, we assign
value to information based on its meaning fulness. The place where information
dwells, the holy moment where transmission becomes reception, is a region
which has many shifting characteristics and flavors depending on the relationship
of sender and receiver, the depth of their interactivity.
Each such relationship
is unique. Even in cases where the sender is a broadcast medium, and no
response is returned, the receiver is hardly passive. Receiving information
is often as creative an act as generating it.
The value of what is sent
depends entirely on the extent to which each individual receiver has the
receptors...shared terminology, attention, interest, language, paradigm...necessary
to render what is received meaningful.
Understanding is a critical
element increasingly overlooked in the effort to turn information into
a commodity. Data may be any set of facts, useful or not, intelligible
or inscrutable, germane or irrelevant. Computers can crank out new data
all night long without human help, and the results may be offered for
sale as information. They may or may not actually be so. Only a human
being can recognize the meaning which separates information from data.
In fact, information,
in the economic sense of the word, consists of data which have been passed
through a particular human mind and found meaningful within that mental
context. One fella's information is all just data to someone else. If
you're an anthropologist, my detailed charts of Tasaday kinship patterns
might be critical information to you. If you're a banker from Hong Kong,
they might barely seem to be data.
Familiarity Has More Value
With physical goods, there
is a direct correlation between scarcity and value. Gold is more valuable
than wheat, even though you can't eat it. While this is not always the
case, the situation with information is usually precisely the reverse.
Most soft goods increase in value as they become more common. Familiarity
is an important asset in the world of information. It may often be the
case that the best thing you can do to raise the demand for your product
is to give it away.
While this has not always
worked with shareware, it could be argued that there is a connection between
the extent to which commercial software is pirated and the amount which
gets sold. Broadly pirated software, such as Lotus 1-2-3 or WordPerfect,
becomes a standard and benefits from Law of Increasing Returns based on
In regard to my own soft
product, rock and roll songs, there is no question that the band I write
them for, the Grateful Dead, has increased its popularity enormously by
giving them away. We have been letting people tape our concerts since
the early seventies, but instead of reducing the demand for our product,
we are now the largest concert draw in America, a fact which is at least
in part attributable to the popularity generated by those tapes.
True, I don't get any
royalties on the millions of copies of my songs which have been extracted
from concerts, but I see no reason to complain. The fact is, no one but
the Grateful Dead can perform a Grateful Dead song, so if you want the
experience and not its thin projection, you have to buy a ticket from
us. In other words, our intellectual property protection derives from
our being the only real-time source of it.
Exclusivity Has Value
The problem with a model
which turns the physical scarcity/value ratio on its head is that sometimes
the value of information is very much based on its scarcity. Exclusive
possession of certain facts makes them more useful. If everyone knows
about conditions which might drive a stock price up, the information is
But again, the critical
factor is usually time. It doesn't matter if this kind of information
eventually becomes ubiquitous. What matters is being among the first who
possess it and act on it. While potent secrets usually don't stay secret,
they may remain so long enough to advance the cause of their original
Point of View and Authority
In a world of floating
realities and contradictory maps, rewards will accrue to those commentators
whose maps seem to fit their territory snugly, based on their ability
to yield predictable results for those who use them.
In aesthetic information,
whether poetry or rock 'n' roll, people are willing to buy the new product
of an artist, sight-unseen, based on their having been delivered a pleasurable
experience by previous work.
Reality is an edit. People are willing to pay for the authority of those
editors whose filtering point of view seems to fit best. And again, point
of view is an asset which cannot be stolen or duplicated. No one but Esther
Dyson sees the world as she does and the handsome fee she charges for
her newsletter is actually for the privilege of looking at the world through
her unique eyes.
Time Replaces Space
In the physical world,
value depends heavily on possession, or proximity in space. One owns that
material which falls inside certain dimensional boundaries and the ability
to act directly, exclusively, and as one wishes upon what falls inside
those boundaries is the principal right of ownership. And of course there
is the relationship between value and scarcity, a limitation in space.
In the virtual world,
proximity in time is a value determinant. An informational product is
generally more valuable the closer the purchaser can place himself to
the moment of its expression, a limitation in time. Many kinds of information
degrade rapidly with either time or reproduction. Relevance fades as the
territory they map changes. Noise is introduced and bandwidth lost with
passage away from the point where the information is first produced.
Thus, listening to a Grateful
Dead tape is hardly the same experience as attending a Grateful Dead concert.
The closer one can get to the headwaters of an informational stream, the
better his changes of finding an accurate picture of reality in it. In
an era of easy reproduction, the informational abstractions of popular
experiences will propagate out from their source moments to reach anyone
who's interested. But it's easy enough to restrict the real experience
of the desirable event, whether knock-out punch or guitar lick, to those
willing to pay for being there.
The Protection of Execution
In the hick town I come
from, they don't give you much credit for just having ideas. You are judged
by what you can make of them. As things continue to speed up, I think
we see that execution is the best protection for those designs which become
physical products. Or, as Steve Jobs once put it, "Real artists ship."
The big winner is usually the one who gets to the market first (and with
enough organizational force to keep the lead).
But, as we become fixated
upon information commerce, many of us seem to think that originality alone
is sufficient to convey value, deserving, with the right legal assurances,
of a steady wage. In fact, the best way to protect intellectual property
is to act on it. It's not enough to invent and patent, one has to innovate
as well. Someone claims to have patented the microprocessor before Intel.
Maybe so. If he'd actually started shipping microprocessors before Intel,
his claim would seem far less spurious.
Information as Its Own
It is now a commonplace
to say that money is information. With the exception of Krugerands, crumpled
cab-fare, and the contents of those suit-cases which drug lords are reputed
to carry, most of the money in the informatized world is in ones and zeros.
The global money supply sloshes around the Net, as fluid as weather. It
is also obvious, as I have discussed, that information has become as fundamental
to the creation of modern wealth as land and sunlight once were.
What is less obvious is
the extent to which information is acquiring intrinsic value, not as a
means to acquisition but as the object to be acquired. I suppose this
has always been less explicitly the case. In politics and academia, potency
and information have always been closely related.
However, as we increasingly
buy information with money, we begin to see that buying information with
other information is simple economic exchange without the necessity of
converting the product into and out of currency. This is somewhat challenging
for those who like clean accounting, since, information theory aside,
informational exchange rates are too squishy to quantify to the decimal
Nevertheless, most of
what a middle class American purchases has little to do with survival.
We buy beauty, prestige, experience, education, and all the obscure pleasures
of owning. Many of these things can not only be expressed in non-material
terms, they can be acquired by non-material means.
And then there are the
inexplicable pleasures of information itself, the joys of learning, knowing,
and teaching. The strange good feeling of information coming into and
out of oneself. Playing with ideas is a recreation which people must be
willing to pay a lot for, given the market for books and elective seminars.
We'd likely spend even more money for such pleasures if there weren't
so many opportunities to pay for ideas with other ideas.
This explains much of
the collective "volunteer" work which fills the archives, newsgroups,
and databases of the Internet. Its denizens are not working for 'nothing,"
as is widely believed. Rather they are getting paid in something besides
money. It is an economy which consists almost entirely of information.
This may become the dominant
form of human trade, and if we persist in modeling economics on a strictly
monetary basis, we may be gravely misled.
all the foregoing relates to solutions to the crisis in intellectual property
is something I've barely started to wrap my mind around. It's fairly paradigm-warping
to look at information through fresh eyes--to see how very little it is
like pig iron or pork bellies, to imagine the tottering travesties of
case law we will stack up if we go on treating it legally as though it
As I've said, I believe
these towers of outmoded boilerplate will be a smoking heap sometime in
the next decade and we mind miners will have no choice but to cast our
lot with new systems that work.
I'm not really so gloomy about our prospects as readers of this jeremiad
so far might conclude. Solutions will emerge. Nature abhors a vacuum and
so does commerce.
Indeed, one of the aspects
of the electronic frontier which I have always found most appealing--and
the reason Mitch Kapor and I used that phrase in naming our foundation--is
the degree to which it resembles the 19th Century American West in its
natural preference for social devices which emerge from it conditions
rather than those which are imposed from the outside.
Until the west was fully
settled and "civilized" in this century, order was established
according to an unwritten Code of the West which had the fluidity of etiquette
rather than the rigidity of law. Ethics were more important than rules.
Understandings were preferred over laws, which were, in any event, largely
I believe that law, as
we understand it, was developed to protect the interests which arose in
the two economic "waves" which Alvin Toffler accurately identified
in The Third Wave. The First Wave was agriculturally based and required
law to order ownership of the principal source of production, land. In
the Second Wave, manufacturing became the economic mainspring, and the
structure of modern law grew around the centralized institutions which
needed protection for their reserves of capital, manpower, and hardware.
Both of these economic
systems required stability. Their laws were designed to resist change
and to assure some equability of distribution within a fairly static social
framework. The possibility spaces had to be constrained to preserve the
predictability necessary to either land stewardship or capital formation.
In the Third Wave we have
now entered, information to a large extent replaces land, capital, and
hardware, and as I have detailed in the preceding section, information
is most at home in a much more fluid and adaptable environment. The Third
Wave is likely to bring a fundamental shift in the purposes and methods
of law which will affect far more than simply those statutes which govern
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 my fellow EFF co-founder John
Gilmore, "treats censorship as a malfunction" and re-routes
proscribed ideas around it.
Similar natural balancing
mechanisms may arise to smooth over the social discontinuities which previously
required legal intercession to set right. On the Net, these differences
are more likely to be spanned by a continuous spectrum which connects
as much as it separates.
And, despite their fierce
grip on the old legal structure, companies which trade in information
are likely to find that in their increasing inability to deal sensibly
with technological issues, the courts will not produce results which are
predictable enough to be supportive of long-term enterprise. Every litigation
becomes like a game of Russian roulette, depending on the depth the presiding
Uncodified or adaptive
"law," while as "fast, loose, and out of control"
as other emergent forms, is probably more likely to yield something like
justice at this point. In fact, one can already see in development new
practices to suit the conditions of virtual commerce. The life forms of
information are evolving methods to protect their continued reproduction.
For example, while all
the tiny print on a commercial diskette envelope punctiliously requires
much of those who would open it, there are, as I say, few who read those
provisos, let alone follow them to the letter. 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 which
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.
I do think that some software
is being purchased in the service of ethics or the abstract awareness
that the failure to buy it will result in its not being produced any longer,
but I'm going to leave those motivators aside. While I believe that the
failure of law will almost certainly result in a compensating re-emergence
of ethics as the ordering template of society, this is a belief I don't
have room to support here.
Instead, I think that,
as in the case cited above, compensation for soft products will be driven
primarily by practical considerations, all of them consistent with the
true properties of digital information, where the value lies in it, and
how it can be both manipulated and protected by technology.
While the conundrum remains
a conundrum, I can begin to see the directions from which solutions may
emerge, based in part on broadening those practical solutions which are
already in practice.
and Its Tools
believe one idea is central to understanding liquid commerce: Information
economics, in the absence of objects, will be based more on relationship
One existing model for
the future conveyance of intellectual property is real time performance,
a medium currently used only in theater, music, lectures, stand-up comedy
and pedagogy. I believe the concept of performance will expand to include
most of the information economy from multi-casted soap operas to stock
analysis. In these instances, commercial exchange will be more like ticket
sales to a continuous show than the purchase of discrete bundles of that
which is being shown.
The other model, of course,
is service. The entire professional class--doctors, lawyers, consultants,
architects, etc.--are already being paid directly for their intellectual
property. Who needs copyright when you're on a retainer?
In fact, this model was
applied to much of what is now copyrighted until the late 18th Century.
Before the industrialization of creation, writers, composers, artists,
and the like produced their products in the private service of patrons.
Without objects to distribute in a mass market, creative people will return
to a condition somewhat like this, except that they will serve many patrons,
rather than one.
We can already see the
emergence of companies which base their existence on supporting and enhancing
the soft property they create rather than selling it by the shrink-wrapped
piece or embedding it in widgets.
Trip Hawkins' new company
for creating and licensing multimedia tools, 3DO, is an example of what
I'm talking about. 3DO doesn't intend to produce any commercial software
or consumer devices. Instead, they will act as a kind of private standards
setting body, mediating among software and device creators who will be
their licensees. They will provide a point of commonalty for relationships
between a broad spectrum of entities.
In any case, whether you
think of yourself as a service provider or a performer, the future protection
of your intellectual property will depend on your ability to control your
relationship to the market--a relationship which will most likely live
and grow over a period of time.
The value of that relationship
will reside in the quality of performance, the uniqueness of your point
of view, the validity of your expertise, its relevance to your market,
and, underlying everything, the ability of that market to access your
creative services swiftly, conveniently, and interactively.
interaction will provide a lot of intellectual property protection in
the future, and, indeed, it already has. No one knows how many software
pirates have bought legitimate copies of a program after calling its publisher
for technical support and being asked for some proof of purchase, but
I would guess the number is very high.
The same kind of controls
will be applicable to "question and answer" relationships between
authorities (or artists) and those who seek their expertise. Newsletters,
magazines, and books will be supplemented by the ability of their subscribers
to ask direct questions of authors.
Interactivity will be
a billable commodity even in the absence of authorship. As people move
into the Net and increasingly get their information directly from its
point of production, unfiltered by centralized media, they will attempt
to develop the same interactive ability to probe reality which only experience
has provided them in the past. Live access to these distant "eyes
and ears" will be much easier to cordon than access to static bundles
of stored but easily reproducible information.
In most cases, control
will be based on restricting access to the freshest, highest bandwidth
information. It will be a matter of defining the ticket, the venue, the
performer, and the identity of the ticket holder, definitions which I
believe will take their forms from technology, not law.
In most cases, the defining
technology will be cryptography.
as I've said perhaps too many times, is the "material" from
which the walls, boundaries--and bottles--of Cyberspace will be fashioned.
Of course there are problems
with cryptography or any other purely technical method of property protection.
It has always appeared to me that the more security you hide your goods
behind, the more likely you are to turn your sanctuary into a target.
Having come from a place where people leave their keys in their cars and
don't even have keys to their houses, I remain convinced that the best
obstacle to crime is a society with its ethics intact.
While I admit that this
is not the kind of society most of us live in, I also believe that a social
over-reliance on protection by barricades rather than conscience will
eventually wither the latter by turning intrusion and theft into a sport,
rather than a crime. This is already occurring in the digital domain as
is evident in the activities of computer crackers.
Furthermore, I would argue
that initial efforts to protect digital copyright by copy protection contributed
to the current condition in which most otherwise ethical computer users
seem morally untroubled by their possession of pirated software.
Instead of cultivating
among the newly computerized a sense of respect for the work of their
fellows, early reliance on copy protection led to the subliminal notion
that cracking into a software package somehow "earned" one the
right to use it. Limited not by conscience but by technical skill, many
soon felt free to do whatever they could get away with. This will continue
to be a potential liability of the encryption of digitized commerce.
Furthermore, it's cautionary
to remember that copy protection was rejected by the market in most areas.
Many of the upcoming efforts to use cryptography-based protection schemes
will probably suffer the same fate. People are not going to tolerate much
which makes computers harder to use than they already are without any
benefit to the user.
has already demonstrated a certain blunt utility. New subscriptions to
various commercial satellite TV services sky-rocketed recently after their
deployment of more robust encryption of their feeds. This, despite a booming
backwoods trade in black decoder chips conducted by folks who'd look more
at home running moonshine than cracking code.
Another obvious problem
with encryption as a global solution is that once something has been unscrambled
by a legitimate licensee, it may be openly available to massive reproduction.
In some instances, reproduction
following decryption may not be a problem. Many soft products degrade
sharply in value with time. It may be that the only real interest in some
such products will be among those who have purchased the keys to immediacy.
Furthermore, as software
becomes more modular and distribution moves online, it will begin to metamorphose
in direct interaction with its user base. Discontinuous upgrades will
smooth into a constant process of incremental improvement and adaptation,
some of it man-made and some of it arising through genetic algorithms.
Pirated copies of software may become too static to have much value to
Even in cases such as
images, where the information is expected to remain fixed, the unencrypted
file could still be interwoven with code which could continue to protect
it by a wide variety of means.
In most of the schemes I can project, the file would be "alive"
with permanently embedded software which could "sense" the surrounding
conditions and interact with them, For example, it might contain code
which could detect the process of duplication and cause it to self-destruct.
Other methods might give
the file the ability to "phone home" through the Net to its
original owner. The continued integrity of some files might require periodic
"feeding" with digital cash from their host, which they would
then relay back to their authors.
Of course files which
possess the independent ability to communicate upstream sound uncomfortably
like the Morris Internet Worm. "Live" files do have a certain
viral quality. And serious privacy issues would arise if everyone's computer
were packed with digital spies.
The point is that cryptography
will enable a lot of protection technologies which will develop rapidly
in the obsessive competition which has always existed between lock-makers
But cryptography will not be used simply for making locks. It is also
at the heart of both digital signatures and the afore-mentioned digital
cash, both of which I believe will be central to the future protection
of intellectual property.
I believe that the generally
acknowledged failure of the shareware model in software had less to do
with dishonesty than with the simple inconvenience of paying for shareware.
If the payment process can be automated, as digital cash and signature
will make possible, I believe that soft product creators will reap a much
higher return from the bread they cast upon the waters of Cyberspace.
Moreover, they will be
spared much of the overhead which presently adheres to the marketing,
manufacture, sales, and distribution of information products, whether
those products are computer programs, books, CD's, or motion pictures.
This will reduce prices and further increase the likelihood of non-compulsory
But of course there is
a fundamental problem with a system which 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 which will
restrict inquiry to the wealthy.
An Economy of
future forms and protections of intellectual property are densely obscured
from the entrance to the Virtual Age. Nevertheless, I can make (or reiterate)
a few flat statements which I earnestly believe won't look too silly in
In the absence of the
old containers, almost everything we think we know about intellectual
property is wrong. We are going to have to unlearn it. We are going to
have to look at information as though we'd never seen the stuff before.
The protections which
we will develop will rely far more on ethics and technology than on law.
Encryption will be the technical basis for most intellectual property
protection. (And should, for this and other reasons, be made more widely
The economy of the future
will be based on relationship rather than possession. It will be continuous
rather than sequential.
And finally, in the years
to come, most human exchange will be virtual rather than physical, consisting
not of stuff but the stuff of which dreams are made. Our future business
will be conducted in a world made more of verbs than nouns.
Ojo Caliente, New Mexico, October 1, 1992
New York, New York, November 6, 1992
Brookline, Massachusetts, November 8, 1992
New York, New York, November 15, 1993
San Francisco, California, November 20, 1993
Pinedale, Wyoming, November 24-30, 1993
New York, New York, December 13-14, 1993
expression has lived and grown to this point over the time period and
in the places detailed above. Despite its print publication here, I expect
it will continue to evolve in liquid form, possibly for years.
The thoughts in it have
not been "mine" alone but have assembled themselves in a field
of interaction which has existed between myself and numerous others, to
whom I am grateful. They particularly include: Pamela Samuelson, Kevin
Kelly, Mitch Kapor, Mike Godwin, Stewart Brand, Mike Holderness, Miram
Barlow, Danny Hillis, Trip Hawkins, and Alvin Toffler.
However, I should note
in honesty that when Wired sends me a check for having temporarily "fixed"
it on their pages, I alone will cash it...