Josh: So something similar about the Dot.com Bubble and this fictional bubble was that nobody was saying “hey, that’s mine”. There was some sort of creative commons. Is that what made the positive externalities, the fact that there was so much just new crap?
Cory: Well, certainly the self-revealing nature of the Web, which was in its design specification, view source was a really, really powerful motivator. Also, the fact that the early Web had no ready mechanism for producing private websites. And this remains an issue for security, that the Web was not designed to have impermeable membranes between personal spaces and public spaces. The original design specification of the first browser actually had an HTML editor built into it. So, you could clone page, edit it, and post it in one go using the browser. The browser was a maker as well, like a 3D printer that’s also a 3D scanner with a CAD program in the middle. And that was certainly very generative, to use the language of Jonathan Zittrain from Harvard Berkman Center. And there were some things about it that were intrinsically difficult to enclose. And then there was the distinctive nature of information itself, which is that information goods, being non-rivalrous, can benefit from dissemination. The ultimate example of that is Napster, where earlier attempts at content distribution networks had floundered on the difficulty of having centralized provision. Peer-based provision completely inverted the normal economics of distribution, where the more something was in demand, the more copies of it were made and made available. And in retrospect, it’s kind of an obvious thing, that demand for an information good produces more copies of it.
It’s very true to Tim Berners Lee’s original vision (of the Web), that you get a page, you copy the page, you edit the page, you put a copy of the page somewhere where you could reach it and other people could reach it. It reduces the imperative to make high availability, centralized servers. And it’s a dream that people have been chasing ever since and it is very much in tension with intellectual property regimes. I guess the reason I’m having a hard time zeroing in on this for you is that I feel like there’s a submerged premise that I’m not super comfortable with, which is that it was totally natural and understandable to apply copyright to the Web and that this is the unforeseen or maybe foreseeable consequence of this completely logical step that once you had the Web, you would add copyright to it, and use it as the primary regulating framework. And I think that it’s actually part of the problem of Creative Commons, which is that Creative Commons starts from the premise that the Web should be copyrighted, and then says “here’s how you make the copyright more flexible.”
I’ve written about this before, that industrial regulation is good or necessary. We should should have industrial regulation. And that when we try to evaluate the quality of an industrial regulation, we focus in on its contours, which is natural i.e., what does the law say? But what’s actually far more important than the contours of industrial regulation is who we apply it to and who we characterize as being within the remit of the rules. So, imagine financial regulation, clearly something we need. You can just look at the finance bubbles of our lifetime and see that finance markets without regulation produce catastrophic outcomes with real world implications.
But even if we agree on what a good financial regulation is, no one proposes that every transaction that involves money should be subject to financial regulation. Giving your kid five bucks for allowance does not make you a bank. And so now we need a way to cleave banks from not-banks, finance from not-finance. We tend to have a kind of bright-line rule. E.g., A million-dollar transaction is financial, a sub million-dollar transaction is not financial. Those rules are not perfect. You have problems with things like structuring payments. For example, there’s a reporting requirement in the U.S. for transactions of $10,000 or more. And then there’s a crime called structuring, which is when you break a $100,000 transaction into a series of ninety-nine thousand nine hundred ninety-nine dollar transactions with a little leftover at the end to avoid the reporting requirement. So, there are some problems with these bright-line rules and not every million-dollar transaction is going to be financial. But for the most part, we can say that we’re largely capturing things that we want to capture within the scope of the regulation. Well, copyright is the regulation framework for the entertainment industry and the tests that we used for assessing “are you in the entertainment industry?” was are you making or handling copies of creative works? That made a lot of sense when you needed specialized industrial apparatus to make and handle copies; when every book had a printing press in its immediate history and films had film labs and records had record presses. That’s not true anymore and it’s certainly not true of the Web. Every click you make makes dozens of copies.
I once was impersonated by someone on a dating site. I went and looked at this website, saw the profile, saw that this person was setting up dates with people and became worried and called the dating site and they said, “well, the only framework we have for you is you can claim a copyright of the photo that they used of you,” because they used a publicity photo of mine.” The idea that we would make recourse to entertainment law to regulate potential stalkers on dating sites rather than having a sui generis regime that takes account of the distinctive contours of being impersonated on dating sites that are completely unrelated to whether or not you get to make a Batman sequel, is so foundationally incoherent. So, information is valuable, but it’s very much unlike property. And we have lots of things in our world that are valuable and not like property and we devised sui generis rules for them. The most obvious one is humans, right? If you steal my daughter, it’s not theft of kid. Rape is not theft of sex. Murder is not tortious interference. Smacking someone is not trespass. Not because people aren’t as important as property, but because people are important in a way totally distinct from the way that property is important. Information is likewise very important, it needs rules, and those rules should be sui generis, they should be accommodated to information. And I say this not just to someone who cares about human thriving and human rights, which obviously I do, but also as an artist who relies on copyright.
Because if we’re going to say that the framework for the industry that I rely on to regulate my industrial relations with (my agent, my publisher, my editor, the booksellers and so on) is going to be rules so simple that when a kid writes Harry Potter fanfic, she doesn’t fall afoul of it then we make that rule so simple that it could never be suited for my use. When Universal built the Harry Potter ride, the lawyer at Universal and the lawyer at Warner had a long conversation about what the copyright and other licensing deals would be. And then they formalized that in a contract that regulates that ride. The idea that a kid who lives on my block, also within walking distance of Warner and Universal, could use that same framework to make sure that she doesn’t violate the law when she writes Harry Potter fanfic is ridiculous, right? If we make it simple enough for her to understand, it will be of no utility to the lawyers at Universal and Warner. If we don’t, we make presumptive criminals out of every 12-year-old who writes Harry Potter fanfic. My first story, the first story I ever wrote, the one that set me on the path to being a writer, began when I went to see Star Wars in 1977 at the Universal Theatre at Bloor and Bay. I went home, I took a bunch of 8.5 x 11 scrap paper, stapled it up the middle, folded in half into booklets, and wrote that story out over and over again like a kid practicing scales on the piano. And if I had been doing that 20 years later, it would have been on the Web. As an artist, I want rules that are coherent so that my interests can be defended. And as a human being, I want rules that are suited to their purpose so that my child isn’t made into a criminal for doing the thing that I did when I was her age.