The New Information Ontology

I've overstayed my welcome -- I think technically my "guest month" expired three days ago -- but since this has been a pretty dry month for me blog-wise, I figured a farewell post was in order (it also meets the 4-post minimum under my Prawfsblawg contract -- although like Random House with Joan Collins, Dan forgot to set a quality minimum).

Over the past month, there have been a number of new developments in the digital copyright worls concerning takedown notices and YouTube, DRM and iTunes, and television content over the web. Each story is interesting in its own right, but one small reason I haven't commented much is that none of these stories seems to shed much light on the larger picture.

As I see things, there are several big shifts underway due to the steadily more pervasive influence the Internet and computer technology are having on society. Privacy norms are under stress; the distinction between large firms and ordinary individuals is eroding, with both good and bad -- but most of all destabilizing -- effects; and the coin of the realm is information, an intangible good that, like money and real coins, is tied in our minds and in law to physical objects, but no longer is in reality. Sudden changes of any sort have a tendency to pull apart existing conceptual schemes, because the consensus around those schemes is always based to some extent on unstated, but inconsistent, assumptions. What we are seeing now is a battle to define how core norms will shake out -- privacy, civility, publicness, ownership -- now that the faultlines have been exposed.

Just like generals, however, the combatants in norm battles always start off fighting the last war.

I don't suppose many law professors need to be convinced that the idea that all uses that compete with the copyright owner's should be compensated for is unworkable. It may have made sense, and may still make sense, in a universe in which all the relevant players are large enterprises that can afford such extravagances as attorneys to parse complex regulations, but the blurring of the line between consumers and publishers is making that distinction less feasible.

But partisans in the opposing trench are also stuck using ideas inherited from the last war. (That's my last metaphor, I promise.) A major portion of the rhetorical challenge to enforcement of copyrights against consumers is the notion, previously uncontested, that consumers essentially have the right to do whatever they want with the media and devices that come into their possession. That's never been strictly true, of course, as a matter of law, but it's always been the case as a practical matter. Paul Goldstein relates the moment when this concept -- the necessity of theoretical but unenforced consumer liability in copyright law -- was exposed in the Supreme Court. It was not in the famous Betamax case, but almost a decade before that, in the largely forgotten case of Williams & Wilkins v. United States, which concerned the question of whether the NIH could be held contributorily or vicariously liable for photocopying by its researchers:

Only a few minutes remained in the half hour allotted for his argument, and [attorney for the publisher Alan] Latman had so far been able to sidestep the question he feared most.  But now Chief Justice Burger returned to the question of Library of Congress practice.  "It's not uncommon for judges, members of this Court and others, to call on the Library of Congress for a book, sometimes perhaps it's a book, of which they have only one or a very few copies, at least I assume that, because frequently we get a request, 'Will you please return the book.' Well, sometimes instead of returning the book if we are not finished with it, speaking personally, I have Chapter 13 or Chapter 14 copied on the Xerox machine.  As far as I know the Library of Congress has never sent photocopies of anything.  They send the original."  Is such a borrower, Burger wanted to know, "running up against this statute and these claims by making a copy for his own use, copyrighted material?" . . .

Latman responded, "That is a harder question, which we think is quite different from this case."  After circling briefly, he gave his well-prepared answer:  "Nobody would sue.  And I think that's quite significant here, because it's impractical for anyone to sue." . . .

The Chief Justice smiled, deciding not to press the point, deflecting it instead with what in the Supreme Court passes for humor.  "Is it your opinion that nobody would sue the Chief Justice or nobody would sue anybody?"  The courtroom burst into laughter.

It is only recently that this notion has started to pull apart -- that the theoretical distinction between the consumer's essentially unfettered right to use and dispose of a physical good (e.g., a shiny disk) and more limited rights over the content itself has been vigorously asserted. The old ontology used by consumers -- the rights to media are equivalent to rights to physical good they are embodied in -- is no longer workable, and whatever replaces it will have to be a stickier concept than "take a look at Section 109" or "here's 600 cases on fair use; you can use those to calculate your risk probabilities."

But here's another solution that's unworkable: the idea that we can return to some pre-Internet utopia in which consumers can use all available technologies to do whatever they want with mass media. That's a dream about a world that has not existed since at least the 1950s. It replaces a lack of awareness about the increasing burdens being placed on consumers-as-publishers to know the ins and outs of copyright law with a lack of concern about how consumers-as-publishers compete with real publishers. The trick will be to settle on a new and simple bundle of concepts defining rights to information that balances out the competing concerns in the new environment. I don't know exactly what that solution is, but I know that simply waving away the problems of the "other side" is not it.

This conflict is what explains the fervor behind otherwise pedestrian news items such as whether DRM should be used on music or not. But for the battle over norms, only the most wonky music devotee would care about such matters. I happen to think the plastic clamshells that encase many toys and consumer electronics products are a major pain too, but I think it would be odd in the extreme to pay much attention to the latest press releases from Mattel on the subject. The difference is that the former is viewed as just one more tactical move in a battle to define the future of information, whereas the hypothetical Mattel release is just a commonplace business decision. Someday content owner decisions will be viewed the same way, but it's difficult to predict what the conceptual world will look like at that point.