The Problems That Perfection Makes

[I do not think there needs to be any updating for this section but I'm happy to debate this. Feel free to edit directly or open up a discussion on the discussion page.]  These two examples reveal a common problem—one that will reach far beyond copyright. At one time we enjoy a certain kind of liberty, but that liberty comes from the high costs of control.¹ That was the conclusion we drew about fair use—that when the cost of control was high, the space for fair use was great. So too with anonymous reading: we read anonymously in real space not so much because laws protect that right as because the cost of tracking what we read is so great.

When those costs fall, the liberty is threatened. That threat requires a choice—do we allow the erosion, or do we erect other limits to re-create the original space for liberty?

The law of intellectual property is the first example of this general point. The architectures of property will change; they will allow for a greater protection for intellectual property than real-space architectures allowed; and this greater protection will force a choice on us that we do not need to make in real space. Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use? Or a certain space for individual freedom?

Ignoring these questions will not make them go away. Pretending that the framers answered them is no solution either. In this context (and this is just the first) we will need to make a judgment about which values the architecture will protect.

Footnotes

¹ Peter Huber relies explicitly on the high costs of control in his rebuttal to Orwell’s 1984; see Orwell’s Revenge: The 1984 Palimpset (New York: Maxwell Macmillan International, 1994). But this is a weak basis on which to build liberty, especially as the cost of networked control drops. Frances Cairncross (The Death of Distance: How the Communications Revolution Will Change Our Lives [Boston: Harvard Business School Press, 1997], 194–95) effectively challenges the idea as well. Edit Delete