This is a long post that sketches a system in which we can have about the right amount of digital goods at the right price, and pay the people who make them properly. IP engineers, lawyers, and economists, have at it: time to stop rearranging deck chairs and steer the ship. The central underappreciated insight in my view is that the digital content technology system cannot be fixed by torturing dead-tree rules to fit it: technology rights must be technologically administered.
We should think about this in the larger context of infrastructure investment. In the last century and before, this country was able to channel enormous resources and courage to build stuff that shaped the quality of life for the better and that also paid off in enormous economic gains. I’m thinking of railroads, (less fondly of highways), museums, universities, water systems, the electric grid…
Not all of that infrastructure was physical: we also invested in all the knowledge in the libraries of those universities and the know-how in the heads of all the people who attended them, weights and measures standards so any 10-32 machine screw will fit the hole tapped with any 10-32 tap, all the music, books and movies, and more. “More” especially included a legal system that worked well enough to get those books written and songs played, at least as long as they had to be packaged in something that could be locked up in a room.
Almost all of it is worn-out, obsolete, undermaintained, and failing in so many ways. The roads are potholed and congested, the electric grid doesn’t connect to where we need to collect energy and too stupid to do what it should, the universities are turning away people who want to learn (my main spring course roster is 20% waitlist and no, a bigger room won’t solve the problem)… But the most important of these failures, triggered by our ability to encode information as bits instead of ink, is the collapse of the information distribution system, and Aaron Swartz is an appropriate symbol of almost everything that’s wrong with it. Today I got an overdue notice from the library for a paper book. What’s next, a horsedrawn carriage ride to return it: why, in 2013, should I have to get a book back on a physical shelf for someone else to be reading it??!! Why should someone in East Gulch, with its one-day-a-week, one-room library if it has one, not be able to read it at all? Why should musicians not be able to collect a nickel for their work without selling seats for a live performance?
Now is the time to build an information infrastructure of laws and conventions that will create more value and take fewer casualties. First, not just a hat tip, but a sweeping bow to Lawrence Lessig [link fixed 20/I/13], Terry Fisher, Neil Netanel, and the other thinkers who have been exploring this territory over the last decades.
First, the general principles:
(1) Honesty: When people decide to use information, they have the right to know what that use really cost (not what it cost to make the first copy, interesting though that might be). When people generate information, they have the right to know what value their work created or is likely to create.
(2) Privacy: People have a right to use information privately, especially with regard to government.
(3) Efficiency: Independent choices by actors in a free market, correctly informed by prices about costs and benefits (including external costs and benefits) , will almost always beat administrative or authoritarian choices.
(4) Justice: Creators have the right to be paid for their work in amounts commensurate with the value they create. Consumers have the duty to pay for the costs their choices impose on others. Everyone has the right to free speech as broadly understood under the First Amendment.
(5) We’re all in this together: information is the collective patrimony of society. Taxes paid reflect collective benefits but not necessarily exactly the benefits received by each person.
(6) The criteria for a digital medium property regime is that it be better than what exists, and good enough. It will have irremediable flaws and deficiencies.
Short version and implications: Creators (if they wish) need to be paid proportionally to the use made of their work; consumers of digital content need to have access to digital content at marginal cost, which is in almost every case zero beyond the consumer’s time and wear and tear on her hard drive. The big fact about consuming digital content is that doing so leaves no less for everyone else; the corollary of this fact is that charging any more than nothing to consumers is wasteful.
Here is a sketch of the only regime known to me that respects these principles. Nothing in it exceeds demonstrated capacities of existing technology. Note that it can coexist with conventional copyright for authors who prefer the latter.
A. Beginning in 20xx, there shall be appropriated from general funds to the copyright office the sum of $00 per year for administrative costs and implementation of the program described herein. Beginning in 20yy, there shall be appropriated from general funds to the copyright office the sum of $000 annually to be disbursed as “use-scaled” royalties as provided in the following titles.
B. Any legal person wishing to receive use-scaled royalties for creative work in digital form as author shall place with the copyright office a fair copy of the text, image, recording, etc. and identification sufficient to direct annual royalty payments. The copyright office shall retain copies and distribute royalties for 00 years after a work is first registered, and inform registrants of attempts to register works already in the system.
C. Any device with access to the internet shall be equipped with software distributed and certified by the copyright office that will, whenever a file is opened:
a. “Hashcode” or otherwise extract sufficient information to identify the work contained .
b. Transmit the code created under C.a , but not who or what opened the file, to the copyright office. One such transmission of code is a use of that work.
c. Transmission of the file containing a work between devices or persons shall not be a use.
D. The copyright office shall accumulate annually a count of uses for each registered work. Annual royalties shall be distributed in proportion to the fraction of uses recorded for each work, divided by the total of uses for all registered works. Total royalties may be separated into such separate funds for different media [for example, video/movie royalties may result in different per-use payments than music or text] as Congress may from time to time determine.
The copyright office may use statistical sampling techniques to determine the allocation of royalties where appropriate, balancing precision and accuracy of result against administrative cost.
E. The copyright office shall not trace the origin of, nor keep any record of, the individual or device that opened a file thus identified, nor cooperate with any law enforcement or security agency with regard to its records of use.
F. The copyright office shall perform the legal, computer science, and related research required to implement the actions described herein internally and/or by contract as the Register of Copyright may determine.
G. Any person may copy, distribute, read/listen to/watch/mashup/etc., any work registered for use-based royalties without limit of time or place.
H. No provision herein shall replace or nullify any rights granted authors and their assigns under existing copyright law, except that a work in which copyright is claimed shall not be admissible for registration for use-based royalties. Rightful owners of existing copyright who register their works for use-based royalties transfer their rights to the public domain as per G above.
I. Rights to use-based royalties are transferable among legal persons with notice to the copyright office.