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If you met the novelist Neal Stephenson a decade ago, you would have encountered a slight, unassuming grad-student type whose soft-spoken demeanor gave no obvious indication that he had written the manic apotheosis of cyberpunk science fiction (1992's Snow Crash, in which computer viruses start invading hacker minds). It wasn't his debut--he'd published two earlier novels in the 1980s--but the book was such a hit that it put his name on the science fiction map in a way the earlier efforts had not.
Meet Stephenson today, and you'll meet a well-muscled, shaven-headed, bearded fellow who's just published a highly acclaimed, massively popular trilogy of 900-page novels set mostly in the 17th century. Talk to him, though, and you still hear the rigorously humble guy of 10 years ago. Read that trilogy--Quicksilver, The Confusion, and The System of the World, collectively called The Baroque Cycle--and you'll have the uncanny sense that you're reading some new kind of science fiction. Actually, with every Stephenson book since Snow Crash, you feel that you're reading some new kind of science fiction, regardless of the nominal set and settings of the story.
The three parts of The Baroque Cycle were published at six-month intervals in 2003 and 2004; they feature historical figures ranging from Newton and Leibniz to Louis XIV and a very young Benjamin Franklin, bound up in a narrative with the fictional ancestors of the characters in Stephenson's similarly huge, cryptology-centered 1999 novel Cryptonomicon. Like Cryptonomicon, the trilogy has attracted praise from mainstream critics as well as Stephenson's science fiction fan base. The Village Voice calls the series "a work of idiosyncratic beauty whose plots boast tangled, borderless roots." The Independent says it is "a far more impressive literary endeavour than most so-called 'serious' fiction." Even a mixed review of Quicksilver in The Washington Post describes it as "often brilliant and occasionally astonishing."
Stephenson has a substantial libertarian following as well, and not merely because the decentralized, post-statist social systems he describes in Snow Crash and The Diamond Age (1995) are so radically different from modern government. The Baroque Cycle is, among other things, a close look at the rise of science, the market, and the nation-state, themes close to any classical liberal's heart. Reading it means reading three long, encyclopedic books and maybe spending half a year in an earlier century. It's not the kind of thing the average reader takes on lightly. But once you find you have a taste for Stephenson's broad range of obsessive interests, his fine ear for period and modern English prose and speech, and his gift for making the improbably comic seem eminently human, the question no longer is whether you'll read his books--it's when.
Contributing Editor Mike Godwin interviewed Stephenson, primarily via e-mail, in late fall.
Reason: In The Baroque Cycle we see two different kinds of nation-states at war with each other: traditional monarchies vs. the modern mercantile state. Some readers see political themes in Snow Crash, The Diamond Age, and Cryptonomicon--e.g., that traditional governmental institutions have collapsed or mutated into some less central form. Is this something you see as inevitable?
Neal Stephenson: I can understand that if you are the sort of person who spends a lot of time thinking about government and commerce, then by reading Snow Crash, The Diamond Age, Cryptonomicon, and The Baroque Cycle through that lens, and by squinting, holding the books at funny angles, and jiggling them around, you might be able to perceive some sort of common theme. But it is a stretch. The themes you mention are so vast and so common to all societies and periods of history that I would find it difficult to write a novel that did not touch on them in some way.
In general I try to avoid the easy, the glib, and the oversimplified in my books. I don't always succeed, but that is my goal. A way to approach that goal is to try to see things through the eyes of reasonably well-wrought characters. So, if I'm writing a book set 350 years ago, when the old medieval system of titled nobility is losing ground to a new power system based on international trade, then I try to get inside the heads of people who lived in those days and see things their way. Similarly, if I am writing something set in a high-tech world where the nation-state seems to be losing ground as compared to other sorts of entities, such as NGOs or traditional cultural groups, I'm going to do my best to reflect that. It is the sort of thing that intelligent people think about from time to time, and it would seem stilted to portray otherwise intelligent and self-aware characters who never think about such topics.
Much of what has gone on since 9/11, not only here but in other places, like the Netherlands, looks to me like a reversal of the trends of the previous couple of decades. Government is getting more powerful, and its (perceived) usefulness and relevance to the average person is more obvious than it was 10 years ago.
Reason: Snow Crash is almost a parody of a libertarian future. Do you think the affinity-group-based societies you outline in that book are on their way? Do you see that as a warning note, or a natural state we're progressing toward?
Stephenson: I dreamed up the Snow Crash world 15 years ago as a thought experiment, and I tweaked it to be as funny and outrageous and graphic novel like as I could make it. Such a world wouldn't be stable unless each little "burbclave" had the ability to defend itself from all external threats. This is not plausible, barring some huge advances in defensive technology. So I think that if I were seriously to address your question, "Do you see that as a warning note, or a natural state...?," I would be guilty of taking myself a little bit too seriously.
Speaking as an observer who has many friends with libertarian instincts, I would point out that terrorism is a much more formidable opponent of political liberty than government. Government acts almost as a recruiting station for libertarians. Anyone who pays taxes or has to fill out government paperwork develops libertarian impulses almost as a knee-jerk reaction. But terrorism acts as a recruiting station for statists. So it looks to me as though we are headed for a triangular system in which libertarians and statists and terrorists interact with each other in a way that I'm afraid might turn out to be quite stable.
Reason: You gave a speech at the Computers, Freedom, and Privacy Conference a few years back in which you suggested that the focus on issues like encryption was too narrow, and that we should give more attention to what theologian Walter Wink calls "domination systems." This surprised some of the attendees, partly because it reached outside the usual privacy/free speech issue set and partly because, hey, you were citing a theologian. What brought you to Walter Wink, and what other light do you think theologians can shed on our approaches to government?
Stephenson: This probably won't do anything to endear me or Wink to thE typical reason reader, but I was made aware of him by a Jesuit priest of leftish tendencies who had been reading his stuff.
It's almost always a disaster when a novelist decides to become political. So let me just make a few observations here on a human level--which is within my comfort zone as a novelist--and leave it at that.
It's clear that the body politic is subject to power disorders. By this I mean events where some person or group suddenly concentrates a lot of power and abuses it. Power disorders frequently come as a surprise, and cause a lot of damage. This has been true since the beginning of human history. Exactly how and why power disorders occur is poorly understood.
We are in a position akin to that of early physicians who could see that people were getting sick but couldn't do anything about it, because they didn't understand the underlying causes. They knew of a few tricks that seemed to work. For example, nailing up plague houses tended to limit the spread of plague. But even the smart doctors tended to fall under the sway of pet theories that were wrong, such as the idea that diseases were caused by imbalanced humors or bad air. Once that happened, they ignored evidence that contradicted their theory. They became so invested in that theory that they treated any new ideas as threats. But from time to time you'd see someone like John Snow, who would point out, "Look, everyone who draws water from Well X is getting cholera." Then he went and removed the pump handle from Well X and people stopped getting cholera. They still didn't understand germ theory, but they were getting closer.
We can make a loose analogy to the way that people have addressed the problem of power disorders. We don't really understand them. We know that there are a couple of tricks that seem to help, such as the rule of law and separation of powers. Beyond that, people tend to fall under the sway of this or that pet theory. And so you'll get perfectly intelligent people saying, "All of our problems would be solved if only the workers controlled the means of production," or what have you. Once they've settled on a totalizing political theory, they see everything through that lens and are hostile to other notions.
Wink's interpretation of the New Testament is that Jesus was not a pacifist milksop but (among other things) was encouraging people to resist the dominant power system of the era, that being the Roman Empire. Mind you, Wink is no fan of violence either, and he devotes a lot of ink to attacking what he calls the Myth of Redemptive Violence, which he sees as a meme by which domination systems are perpetuated. But he is clearly all in favor of people standing up against oppressive power systems of all stripes.
Carrying that forward to the present day, Wink takes a general interest in people in various places who are getting the shaft. He develops an empirical science of shaftology, if you will. (Of course he doesn't call it shaftology; that's just my name for it.) He goes all over the world and looks at different kinds of people who are obviously getting the shaft, be they blacks in apartheid South Africa, South American peasants, or residents of inner-city neighborhoods dominated by gangs. He looks for connections among all of these situations and in this way develops the idea of domination systems. It's not germ theory and modern antibiotics, but it is, at the very least, a kind of epidemiology of power disorders. And even people who can't stomach the religious content of his work might take a few cues from this epidemiological, as opposed to theoretical/ideological, approach.
Reason: The Baroque Cycle suggests that there are sometimes great explosions of creativity, followed by that creative energy's recombining and eventual crystallization into new forms--social, technological, political. Are we seeing a similar degree of explosive progress in the modern U.S.?
Stephenson: The success of the U.S. has not come from one consistent cause, as far as I can make out. Instead the U.S. will find a way to succeed for a few decades based on one thing, then, when that peters out, move on to another. Sometimes there is trouble during the transitions. So, in the early-to-mid-19th century, it was all about expansion westward and a colossal growth in population. After the Civil War, it was about exploitation of the world's richest resource base: iron, steel, coal, the railways, and later oil.
For much of the 20th century it was about science and technology. The heyday was the Second World War, when we had not just the Manhattan Project but also the Radiation Lab at MIT and a large cryptology industry all cooking along at the same time. The war led into the nuclear arms race and the space race, which led in turn to the revolution in electronics, computers, the Internet, etc. If the emblematic figures of earlier eras were the pioneer with his Kentucky rifle, or the Gilded Age plutocrat, then for the era from, say, 1940 to 2000 it was the engineer, the geek, the scientist. It's no coincidence that this era is also when science fiction has flourished, and in which the whole idea of the Future became current. After all, if you're living in a technocratic society, it seems perfectly reasonable to try to predict the future by extrapolating trends in science and engineering.
It is quite obvious to me that the U.S. is turning away from all of this. It has been the case for quite a while that the cultural left distrusted geeks and their works; the depiction of technical sorts in popular culture has been overwhelmingly negative for at least a generation now. More recently, the cultural right has apparently decided that it doesn't care for some of what scientists have to say. So the technical class is caught in a pincer between these two wings of the so-called culture war. Of course the broad mass of people don't belong to one wing or the other. But science is all about diligence, hard sustained work over long stretches of time, sweating the details, and abstract thinking, none of which is really being fostered by mainstream culture.
Since our prosperity and our military security for the last three or four generations have been rooted in science and technology, it would therefore seem that we're coming to the end of one era and about to move into another. Whether it's going to be better or worse is difficult for me to say. The obvious guess would be "worse." If I really wanted to turn this into a jeremiad, I could hold forth on that for a while. But as mentioned before, this country has always found a new way to move forward and be prosperous. So maybe we'll get lucky again. In the meantime, efforts to predict the future by extrapolating trends in the world of science and technology are apt to feel a lot less compelling than they might have in 1955.
Reason: Is The Baroque Cycle science fiction?
Stephenson: Labels such as science fiction are most useful when employed for marketing purposes, i.e., to help readers find books that they are likely to enjoy reading. With that in mind, I'd say that people who know and love science fiction will recognize these books as coming out of that tradition. So the science fiction label is useful for them as a marketing term. However, non-S.F. readers are also reading and enjoying these books, and I seem to have a new crop of readers who aren't even aware that I am known as an S.F. writer. So it would be an error to be too strict or literal-minded about application of the science fiction label.
Reason: To some of your longstanding readers, it may be a bit of a jolt to find themselves in the 17th- and 18th-century settings of this new trilogy. Is there any clear line connecting your earlier novels to your most recent ones?
Stephenson: The progression from my earlier S.F. works set in the future to The Baroque Cycle is easy to explain:
The earlier books like Snow Crash and The Diamond Age actually had a lot of historical content in them.
Obviously, I was paying a lot of attention to information technology.
Historical novels, such as alternate histories, are common in the S.F. world.
The Second World War has been, and continues to be, fertile ground for novelists and other artists.
Taking into account all of the above, it was reasonable, verging on obvious, to write a historical S.F. novel about the origins of information technology in the Second World War (Cryptonomicon). That book also ended up having a lot to do with money.
As I was working on Cryptonomicon I became aware that a) Leibniz had done a lot of work with information technology and b) Newton had done a lot of work on money, and of course I already knew that c) Leibniz and Newton hated each other and had a philosophical war. When I began to study the period of time in which these two men lived I discovered that d) it was a fascinating epoch in many, many ways. So again, it became reasonable, verging on obvious, to write something about that topic. But the complexity of the era was such that I didn't think I could tell the story I wanted to tell in a single book. And yet the excitement and splendor of the times were such that I hoped I might be able to sustain a reasonably interesting narrative over a large number of pages.
Reason: One of the things you discover reading The Baroque Cycle is just how much of today's understanding of the world--not just the physical world, but the social and monetary worlds--derives from ideas that were current in the time of Newton and Leibniz. Was that a surprise to you when you were researching the period?
Stephenson: The initial surprise was that Leibniz had done so much computer-related work so early. I got that from George Dyson's Darwin Among the Machines. When I began to read about the period, I was surprised by the sophistication of the Amsterdam stock market and the complexity of the Lyonnaise financial system. But the greatest single surprise for me was the welter of ideas contained in [Robert] Hooke's Micrographia. Hooke talks about an incredibly wide range of topics in that volume.
One is how we ought to define thinking--what is intelligence? He cites the way that flies are drawn to the smell of meat, which seems like intelligent behavior. But then he cites the counterexample of a trap that kills an animal. To a primitive person who didn't know that the trap had been invented by a person, it might seem that the trap itself possessed intelligence and will. Of course, this isn't really the case; it's just a dumb mechanism reflecting the intelligence of him who created it. But, Hooke says, who are we to say that a fly isn't just a more complicated mechanism that is designed to fly toward the smell of meat? In which case it isn't being intelligent at all, only reflecting the intelligence of the Creator.
The final surprise I'll mention is that Leibniz's system of doing physics, which is based on fundamental units called monads, has got a few things in common with the modern notion of computational physics, or "it from bit." Furthermore, Leibniz's rejection of the concept of absolute space and time, which for a long time seemed a little bit loony to people, enjoyed a revival beginning with Ernst Mach.
One could argue that people like Leibniz and the others were able to come up with some good ideas because they weren't afraid to think metaphysically. In those days, metaphysics was still a respected discipline and considered as worthwhile as mathematics. It got the stuffing kicked out of it through much of the 20th century and became a byword for mystical, obscurantist thinking, but in recent decades it has been rehabilitated somewhat.
At bottom, anyone who asks questions like "Why does the universe seem to obey laws?" or "Why does mathematics work so well in modeling the physical universe?" is engaging in metaphysics. People like Newton and Leibniz were as well-equipped for this kind of thinking as anyone today, and so it is interesting to read and think about their metaphysics. Seventeenth-century chemistry may have been rudimentary, and of only historical interest today, but 17th-century philosophy is highly developed and still interesting to read.
Reason: The Baroque Cycle is an unusual work of fiction in that it includes an extensive bibliography. Were you pre-emptively answering critics who might not appreciate how much of these books was drawn from life?
Stephenson: I didn't anticipate (and so far have not seen) any such line of attack from critics and so made no effort to pre-empt it. It just seemed obvious to me that anyone who actually bothered to read The Baroque Cycle must have an interest in that era and might want to do some further reading, and so as long as I was killing trees I figured I'd try to save them some time and hassle by supplying a few pointers on where they might look.
Reason: Your Newton and Leibniz (and the fictional Daniel Waterhouse) are remarkable characters because of their deep interest in almost everything around them. Are there modern figures who in your opinion show that range of interests?
Stephenson: To be interested in too many things is not conducive to professional advancement in the sciences today. You can't write a general Ph.D. dissertation. You have to pick something very specific. What does happen from time to time is that you'll have one scientist working on a very specific problem in one field, and another working on what seems to be an altogether different problem in another field, and somehow a spark will jump between them and they'll end up writing a joint paper.
Freeman Dyson and his son George Dyson are two people with extraordinarily broad scope. Beyond that, it is difficult to generalize. One encounters high-tech geeks, lawyers, ministers, businesspeople, soldiers, and construction workers who have made themselves extremely erudite by reading a lot of history, science, and philosophy. In an earlier era, people like these might have gravitated to the Royal Society, and indeed one of the many remarkable things about the early Royal Society was its ability to gather in such people, combined with its ability to identify and marginalize "enthusiasts" (cranks) while fostering the ones who had something to contribute. Modern-day scientific institutions tend to value specialization. But that is an unavoidable consequence of the advancement that has taken place in all sciences in the last 350 years.
Reason: A critic once said of Thomas Pynchon that he was one of the few modern novelists for whom what the characters do for a living is more defining than what their emotional relationships are. It seems to me that you have that same focus. In The Baroque Cycle, the biggest romantic relationship in Daniel Waterhouse's life occurs mostly offstage, unless you count his difficult friendship with Isaac Newton.
Stephenson: There's a false dichotomy embedded in that. It's possible to have an emotional relationship with what you do for a living. And this is especially true when you work with other people, because naturally you form emotional relationships with those people, which get all tangled up with your relationship to the work itself.
Daniel Waterhouse has all sorts of emotional relationships with people. It is true that his romantic relationships with women play little overt role in the book. But he's got a quite complex web of relationships to his father and to the rest of his family, as well as to people like the Bolstroods, who are so close that they might as well be family. And over the course of the story he develops relationships with people like Wilkins, Hooke, Oldenburg, Newton, and Leibniz. The book is much more about those relationships than what Daniel does for a living. We actually see very little of what Daniel does for a living and much more of his interactions with these other people. The reason he is summoned back from Boston in the opening chapters of Quicksilver is precisely because he is known to have relationships with Newton and Leibniz that no one else has.
Reason: In the last decade or two, there's been a surge of fiction set in the 17th century: Tremain's Restoration, Pears' An Instance of the Fingerpost, Chevalier's Girl with a Pearl Earring. Is there something about the era that speaks with particular significance to the 21st century?
Stephenson: The glib answer would be that this is such a broad question that I could only answer it by writing a big fat trilogy set during this era. And if I try to answer this question discursively, that's what it's going to turn into. So I'll fall back on saying that it just feels interesting to me.
Here are a few specifics. The medieval is still very much alive and well during this period. People are carrying swords around. Military units have archers. Saracens snatch people from European beaches and carry them off to slavery. There are Alchemists and Cabalists. Great countries are ruled by kings who ride into battle wearing armor. Much of the human landscape--the cities and architecture--are medieval. And yet the modern world is present right next to all of this in the form of calculus, joint-stock companies, international financial systems, etc. This can't but be fascinating to a novelist.
Some older systems have reached a splendid apotheosis. Probably the most splendid is the court of Louis XIV at Versailles. Others mentioned include the Spanish Empire, the Mogul Empire, and the Ottoman Empire. Unfortunately it was not possible to explore all of these in very much detail in these books without making the cycle five times as long as it was already.
At the same time, with the benefit of hindsight we can see that all of those great systems were peaking and going into decline. The most conspicuous example, again, is Louis XIV's version of the French monarchy, which held together as long as he was there to run it. But he was one of a kind, and as soon as he died it all began to unravel and ceased to exist in a few decades.
Again with hindsight, we can see that the new structures and systems that supplanted the old ones were being established during this period. And they were being established in some unlikely places by some unlikely people. The role of persecuted religious minorities--Jews, Huguenots, Puritans, Armenians--is especially interesting here.
That's all to give some explanation of why the period is interesting to me. Of course, I can't speak for the other writers you have mentioned.
Reason: In The Baroque Cycle, with some exceptions, you stick to a modern, comic mode. Since it's clear from your parodic passages that you can do period voices when you want to, why did you choose to make the language so modern?
Stephenson: The Three Musketeers has a distinctly 19th-century flavor, even though it's set in the 17th century. Shakespeare's Julius Caesar reads like an Elizabethan play, not like an ancient Roman history. I'm hesitant to draw such comparisons because there is always the critic who jumps in with the cheap shot: "Oh, look, he's comparing himself to Shakespeare." So as a parenthetical aside to those who think that way, I'll stipulate that I'm not a Shakespeare or even a Dumas, but I am capable of learning from them.
I could have tried to write the entire Baroque Cycle in Jacobean English, but at some point I'd have had to ask myself, "Who am I kidding? Everyone knows this was written in the 21st century." The sensibility from which it's written is that of the high-tech modern world. To purge the whole cycle of all traces of modern English would have seemed forced and absurd. So I just wrote it in whatever language seemed best to get the story across, which in some places was modern-sounding English and in other places was period English.
Reason: There are some mysteries in the trilogy that you don't fully explain.
Stephenson: Mysteries and unresolved questions are a part of real life, and so it's OK for them to exist in novels. As a matter of fact, I'm inclined to be a bit suspicious of any novel in which everything gets tidily resolved at the end. It doesn't feel right for me to do this. So I typically leave some things unresolved. It's not an oversight.]]>
In the 1980s, Bruce Sterling became a leader of the "cyberpunk" revolution -- a literary movement that combined the artistic ambition of science fiction's 1960s New Wave with the hard-core speculation associated with Verne, Wells, Heinlein, and Clarke. Cyberpunk's chief theme was the way technologies evolve us even as we evolve them, and its influence can be seen in almost every science fiction writer of note today, from Ken MacLeod to Alastair Reynolds to Cory Doctorow.
Neuromancer author William Gibson may have been the best-known of the cyberpunks, but the movement's chief theorist and propagandist was Sterling, whose writing covered far more territory than that of his peers. Sterling's books from the period -- Schismatrix, Islands in the Net, Crystal Express -- range so widely in settings and characters that it's hard to talk about them collectively. What they have in common is their author's willingness to stare uncomfortable truths in the face. His 1989 story "We See Things Differently," for example, eerily predicted and captured the jihadic Islamism of the 9/11 era.
In the late '90s, Sterling launched another movement: the Viridian Greens. This one focused on how industrial design could be used to respond to global climate change. "Our society runs on fossil fuel," he wrote in an early manifesto. "We have a substance-abuse problem with carbon dioxide. This is a seemingly abstract issue now, but it's going to get very, very much livelier once we start having evacuation camps and dustbowls and so on. At that point, anyone who isn't talking about the Greenhouse Effect is going to seem very twentieth-century and extremely old-fashioned."
That proclamation in itself might sound old-fashioned -- not entirely out of place in a Greenpeace pamphlet -- but Sterling went on to classify his new cause as an art and design movement. He also gave it a built-in expiration date (2012). He named the movement the Viridian Greens because, as he puts it, "there's something electrical and unnatural about our tinge of green." Sterling's rhetoric is not the renunciatory language of back-to-the-land communal farmers or febrile eco-terrorists. We've made this problem, Sterling tells us, and now it's up to us to design our way out of it -- not by denying ourselves modernity but by embracing a more intelligent version of it.
Sterling is no one-note activist. His mind buzzes with ideas about history, technology, art theory, politics, global cultural trends, and more. The best introduction to the scope of Sterling's interests is his recent non-fiction book Tomorrow Now: Envisioning the Next Fifty Years (Random House). The book is to typical futurist prognostications what jazz is to a symphony: Sterling riffs on what the present tells us about the world our grandchildren will inherit. But like all the best futurists, Sterling has his eyes set on the past as well. That may explain why, even as he describes the book as "an ambitious, sprawling effort in thundering futurist punditry," he frames it on a set piece from Shakespeare -- "The Seven Ages of Man," from As You Like It. Perhaps surprisingly, the Shakespearean trope works rather well as a way of outlining the oncoming histories, comedies, and dramas we're staging for ourselves.
Contributing Editor Mike Godwin talked with Sterling last summer, in the sprawling house the author designed for himself and his family in Austin, Texas.
reason: Not long after the 9/11 terrorist attacks, you wrote a cri de coeur about how the attacks signified the end of a belle époque, during which the government is relatively technocratic, competent, and bland -- providing basic services but otherwise uninteresting -- and the rest of the world is peacefully progressing, partly as a function of technological advance. Are we going to see that kind of era again?
Bruce Sterling: It depends on who "we" are. For the U.S., the belle époque is over. It lost its steam under this tremendous necromantic thing that bin Laden pulled, and also it's over because this huge surge of energy that was in the dot-com world failed at the last mile. Socially, policy makers have made a series of choices very similar to what preceded the collapse into World War I. There's the same kind of massive gung-hoism for acts of violence and the same kind of irrationality. We're in a very dark time. It's dark enough that it cannot lift overnight.
reason: You were upbeat about the Internet bubble. You don't think it was based on irrational exuberance?
Sterling: I don't think it was an irrational exuberance. Some of it was irrational -- clearly there was a lot of embezzlement going on, buddyism on Wall Street, your basic Enron shenanigans. But computation and ubiquitous sensors and ubiquitous communication offer the opportunity to reform the industrial base along cybernetic and post-industrial lines. Should that be allowed to happen, it will bring a lot of prosperity.
But I think we made really serious missteps in 2000 and 2001, and we've really turned our backs on a world that could have been pleasant, delight-ful, peaceful, and technocratic. Now we face a world that is religious, narrow-minded, fundamentalist, and violent.
reason: We're still seeing technological progress, at least in terms of tools. Some of us have DVD burners in our laptops, when not too long ago we couldn't imagine burning CDs. Content providers are freaking out about this because people are able to make their own product, or duplicate other people's product.
Sterling: I'm not really all that interested in what Hollywood does with its stuff. I mean, they're only the size of the porn industry. I think the real revolution is in industrial production. It's about manipulating factory processes, it's about mass customization, it's about a revolution in industry that gets the toxins out of the air and is more efficient by, say, a factor of four than what we had. When that happens we'll have a genuinely new world. Playing movies off handhelds, that's not really that big of a deal.
reason: Still, the content industries are significant enough to start the kind of moral panic you talk about in Tomorrow Now -- moral panics that drive irrational social or governmental responses. Computers keep empowering people and keep surprising people with what they can do.
Sterling: Well, they used to surprise people. Now they alarm people. You can tell it's a moral panic when people start doing really dirty things that have no effect on what's going on. And that's a classic example -- this culture war where you put out fake MP3s that have cursing on them.
reason: It was interesting that when Madonna started cir-culating ersatz MP3s to fool the file traders -- MP3s that had her cursing at them for trying to trade her music without paying for it -- people started sampling the cursing.
Sterling: Pop will eat itself. I predicted for a long time that the Internet would be a big, stinking deal when there was finally a pop song about it. Sure enough, Destiny's Child did a song that has a line about "some girl trashing me on the Internet." That's funny, but the thing that's peculiar about it is there was always a dark side. There was always the porn/mafia/drug dealer/pedophilia aspect -- the four horsemen of the apocalypse.
reason: The flip side of the empowerment dream.
Sterling: We're empowering people we're afraid of, and we cannot handle the consequences of the social change, some of which are always dark. There is no silver lining without its cloud. It's a Woodstock-Altamont transformation. It's like, hey, we're going to play free music for everybody, including these PCP-demented Hell's Angels with pool cues.
reason: I miss the days when porn and computer crime were perceived to be the big threat, not copyright infringement. Those were more inherently interesting.
Sterling: I miss the teenage menace days: "Children shouldn't have these computers. They're burglar tools. They should be kept out of their hands, like rifles and alcohol. No underage people should control all these extremely dangerous mechanisms."
There are historical periods of license and historical periods of oppression. But the records would get lost. At the height of Victorianism, when woman are shrouding the table legs, you're not really confronted with your regency grandfather who was some drunken fuck wandering down streets accosting semi-nude hookers in his heyday.
The history of pornography is you'd find it in your uncle's stuff when you were cleaning up after he died and you'd burn it. People would just destroy it. "Omigod, he had all this indecent stuff!" And you'd kind of whisper about it later. But there were these cleansing fires. You could burn it and there were only so many copies. A privately printed edition of Autobiography of a Flea, or Fanny Hill. Now it's pig easy to go on the Internet and just grab the planet's most scabrous excesses -- absolute debauchery -- you lay it out there with the complete sterile access of a surgeon or a medical test. By what means do we repress this information? Any red-blooded guy with 80 megabytes of rancid porn on his hard disk can be a publisher on a CD-ROM in seconds.
reason: You map out Tomorrow Now according to Shakespeare's Seven Ages of Man: the infant, the school--boy, the lover, the soldier, the judge, the elderly man, and the senile one. When you characterize the soldier age, you talk less about terrorists and terrorism than figures who are somewhere between warlords and criminals.
Sterling: They're terrorist anti-terrorists. The warlords have got it going on because they command the means of production. Bin Laden is a prophet. He's a cultist, and made this tremendous suicide gesture, which is not that far from the Heaven's Gate/Jonestown thing.
reason: The trick is making other people commit suicide for you.
Sterling: No, that's not even the trick. He's probably more powerful dead than he is alive at this point. My suspicion is that the guy is dead. But I expect to see him issuing tapes for the next 30 to 40 years.
He may have been dying. He may have done this thing as a kind of Gotterdammerung gesture. Hitler did that. The Japanese were very into that. Fanatical gestures capture the public's imagination, but they're just not as important to people's lives as massive economic arrangements. A guy like Arkan, the Serb counterterrorist with connections to the Yugoslav government, is in the business of destabilizing nation-states in order to route the entire productive capacity of his population through his own pockets.
reason: When I started the lover chapter, I said to myself, "There is going to be some sex in there," but there wasn't much. Instead you talk about people's relationship with objects.
Sterling: What I'm trying to talk about are aspects of the 21st century that are visibly different from what we already have. And I don't really think love is going to be that different. There's a fringe for people who like blowup dolls, but in point of fact there's very little going on there that hasn't been going on since the advent of the birth control pill.
What is different about the 21st century is the increasing intimacy of people with objects -- not in a sexual way, but in a bodily way. People have implants, they have gizmos, all these little barnacles in their pockets that are attached to themselves. To which they are completely emotionally dependent.
reason: And drugs.
Sterling: More like performance-enhancement devices. And I found it more interesting and more significant to talk about an intimate relationship with prosthetics and gizmos than an intimate relationship between one human being and another.
reason: What personal relationships with gizmos are you in right now?
Sterling: Well, I send my wife a lot of e-mail, and I never really expected that to happen. She's upstairs on her computer, and I'm downstairs on my computer. And we have an increasingly e-mail-mediated relationship. She's sending me notes, she's forwarding me things from my own family. My uncle, who is sort of the family webmaster, is now a much more influential presence in my life, due to e-mail. This is not uncommon. We have certain family affairs that are now electronically organized. Like, how do we look after our dad? We have little rules about who is going to clean the cemetery. We have a myfamily.com Web site where everyone uploads pictures of the children. My cousin's second cousin's children's nephew's bride -- I don't see these people except through electronic mediation. I wouldn't be seeing them otherwise.
reason: Instant messaging has taken more of that role. You have a sense of presence that's even more immediate than e-mail.
Sterling: My daughter's generation is more into that than I am. She's frequently chatting on her phone, doing role playing games with her closest friends who are a teenage gang wandering up and down the campus playing video games. Then they go home, as a teenage gang, to play role playing games, as a gang. They're the same people; it's just that they have different identities: the elf warrior and the dark gothic dwarf.
I'm very interested in those things, but the only game that commands my own attention is Web surfing. I spend huge amounts of time doing that.
reason: It never ceases to amaze me how much material is sort of spontaneously thrown up on the Web.
Sterling: I think that's an early response. You get this database toxicity. You go into a system like Lexis-Nexis and you put in a search word and get 60,000 hits, and you think, this is all the knowledge there is in the universe. But it's actually 10,000 references to six different things, and the actual story is something very few people know.
reason: I think there are some positive social changes happening as a result of this spontaneous database building and Web page building. There are more and more of us who reflexively look things up.
Sterling: There is a Google blindness. It's a kind of common wisdom generator, but it's not necessarily going to get you to the real story of what's actually going on.
reason: As today's children get older they're internalizing Boolean search logic, and they actually do show some discrimination and drill down to the useful information.
Sterling: It is a form of literacy that's really peculiar. Socrates used to talk about this: "The problem with writing is that no one memorizes the Iliad any more. You've got to just know all of it. And how can you call yourself an educated man if you cannot recite Book Three, not missing a single epithet?" He's got a point there.
It has a profound effect on literary composition. I've got Google up all the time. It gives you this veneer of command of the facts which you do not, in point of fact, have. It's extremely useful for novelists but somewhat dangerous if you're pretending to be a brain surgeon.
reason: One thing I notice about the progression of your novels is that the first ones were significantly different in time and space from where we are, and increasingly we bring things closer to the present day. Does that represent the same kind of shift in attention to the world that we see in your nonfiction writing?
Sterling: It's hard to say what is opportunism and what is very typical science fiction writer development. If you read Jules Verne, one of his first books is Paris in the Twentieth Century, which is far away in time and space and could not get published. Then there is Five Weeks in a Balloon, which is in Africa. Then he becomes a member of the Amiens City Council, and at that point all the technocratic brio and the incredible voyage leaks out of his work, and he starts writing these really quite dark political novels like Robur the Conqueror and Master of the World. Because the guy has actually come to an understanding of where the bodies are buried in the power structure. That's kind of overwhelming, and a departure from his earlier fantasies of technocratic prowess: I am Nemo; I will assemble a superelectric submarine.
It's similar to the mental progression of mathematicians. In their early 20s, they're whipping the four-color theorem, and then by the time they're 90, they're working on some tiny, obscure little movement ahead. It's really interesting to someone who's really interested in mathematics.
reason: Novelists don't quite follow that path.
Sterling: Novelists don't. But science fiction novelists do. Real novelists die in the arms of their fourth wife of cirrhosis of the liver at age 57, but science fiction writers are getting bestsellers by chewing over the supertrilogy of the trilogy's trilogy at age 82.
reason: Do you ever have a feeling of vertigo when you look around and see lot of things that seem science fictional that we didn't anticipate, or that we did anti-cipate but didn't expect would come true so soon?
Sterling: Or that they would be so banal. I have moments of future shock. I'm not invulnerable to that. What interests me is where ideas that are very novel to me become old-fashioned and even antiquated. But it doesn't quite shock me in the way that it once did. I didn't merely read the prognostications of my own epoch; I've been very interested in futuristic prognostications written in the 19th century. They're always off. No one can ever make it as banal as it is. If you're writing about the future, it's hard to write about things that will be omnipresent and boring and explain to your readers that they are novelties to you but boring to your characters.
reason: It's strange that not only are your idle musings on Usenet from 15 years ago still out there, but someone could actually confront you with them.
Sterling: That doesn't surprise me too much. I put it in this new book. There are certain things that, in middle age, become obvious to you. The best way to have a really great idea is to have a thousand ideas. The guy who has the thousand ideas will be valorized for idea 837 and for idea 732, but those were never the ones he treasured. What did Thomas Edison really spend a lot of time on? Trying to get rubber out of milkweeds. He devoted fantastic effort to this mad scheme.
There are offhand comments one makes, or little things that you do, that become catch phrases or stuff that people will stick as signature lines on the Internet. It's rarely the polished aphorism that you're sweating over.
reason: It's like what Derrida tells us: You produced this text, and then it's totally out of your control.
Sterling: I agree with that, and the reason I don't resent it is I have taken such liberties with other people's texts. I don't want to submit to any text control system that would conceivably protect my interests from others, when my interests are so freewheeling.
reason: Are we on the verge of post-humanity?
Sterling: I think we are on the verge of post-humanity, but I don't think it's going to look like what any Extropian thinks it's going to look like. At the end of my novel Holy Fire [Bantam, 1997], two post-humans meet. The woman is assessing her former husband and says he's a god. But he's not a god. He's a tommyknocker or a garden gnome. He's this thing which is no longer human and doesn't have human concerns.
There are methods of speculating about how this will play out, and some will have some traction, and some will be ideological or otherwise mistaken. The Extropian problem is thinking you can upload yourself into a computer and have this rapture of the nerds. It was a powerful fantasy of escaping the unbearable pressures of being human. And there are many unbearable pressures of being human. But you find that when you escape one of these things you generally bring all your baggage with you. We will escape some of the limits, but we will not escape into some pure electro-Platonic world any more than the Internet will turn out to be this pure electro-Platonic philosophers' realm.
reason: The Internet turned out to be a funhouse mirror in which everything is emphasized.
Sterling: It's also peculiarly carnal. In the early days of cyberspace, we were going to escape the meat. Well, there is more meat on the Internet than you can imagine. There are acres and acres of people just pointing cameras at their bodies.
reason: Blogging seems to have taken a place in the culture that used to be occupied by fanzines, and maybe by the science fiction magazines.
Sterling: It had its apotheosis in people like Cory Doctorow [author of Down and Out in the Magic Kingdom] and other writers who really aren't that interested in the old paper world. Cory actually publishes stuff electronically, and blogging is his Weird Tales. He is of a generation sufficiently divorced from the old pulps that he's the dolphin among mesosaurs here.
reason: It seems strange to go to the newsstand and see the lone science fiction magazine.
Sterling: It's been anachronistic since World War II. These are the last surviving pulps. I love them dearly.
There's nothing holy about them. Like all forms of media, they are very dependent on their technological circumstances. The transformation comes when the people who understood what it was like die. I'm a transitional figure. I'm the very last generation that worked professionally on typewriters. William Gibson wrote his first book on a typewriter. I wrote two books on typewriters. I was taught to use slide rules in schools. Now it's like having a pet trilobite.
reason: Let's talk about the Viridian movement. You're obviously trying to take some dimension of environmentalism and take it in a new and different direction that isn't particularly anti-modern or anti-technological. And you've tried to frame your "Greens" as an art movement rather than as a political movement.
Sterling: I've always been extremely interested in art movements and political movements and social movements, the small gangs of intelligentsia and who reads whom. Professional musicians are into that too. I just got this new Starbucks album that the Rolling Stones put together. Keith Richards, of all people, talks about how he always wanted to know who the musicians he likes listen to. That's the sign of a true adept there. You want to trace back your spiritual ancestors.
That's what André Breton did, and that's what the pre-Raphaelites did. And they self-published to get the news out. The pre-Raphaelites had this fanzine called The Germ, and it went through four issues. And it always goes through four issues. That's the classic fanzine thing. The surrealists had this fanzine called The Minotaur, and it went through four issues. The cyberpunks had two fanzines -- Cheap Truth and SF Eye. Cheap Truth went through 17 issues. But the issues were only one page long.
They're blogs now. And there are various other social software mechanisms. I'm doing a Viridian blog [www.viridiandesign.org] which is an electro version of a design magazine. I use it as a kind of social probe. It's an experiment for me, a way to give and get back at the same time. It's an organizational experiment. It's a private intelligence network.
reason: And the substance, the topic area, is what?
Sterling: The central topic is the greenhouse effect as a post-industrial design problem. It's not just about raising money for flood victims, which is one way to deal with the consequences. It's about thinking about how we got into this mess, making people realize the mess, and exploring mechanisms -- technologies -- by which we might conceivably get out.
reason: The traditional green approach, as distinct from the Viridian Green approach, is typically framed in negative terms: a "Thou shalt not" or "We must stop X."
Sterling: Traditional environmentalism is tied in with a human self-actualization movement, which says there are certain things we must renounce for moral reasons.
reason: You were not engaged by that?
Sterling: I'm extremely interested in that, actually, but it doesn't really get me anything. One of the things I introduced deliberately in the Viridian movement is Viridian hate objects. There are people who are our bête noirs, on whom we focus scorn and loathing, and of course they are the people who are most Viridian-like but on the other side. Like the Greening Earth Society, which is like six guys getting paid by coal companies. They sit in a hangar out by the Beltway making up lies. So they've got a better budget than us.
Sure, we hate Exxon because they're huge and they're everywhere. They are the worst of the oil majors, and plus they are involved in a lot of black propaganda activities. But the real people you want to hate from a Viridian perspective are the Greening Earth Society, because they are so much like us.
I singled out the Greening Earth Society as a psychological experiment in the manufacture of a social movement because I've noticed that other social movements hate heretics far more than they hate pagans. Pagans who have never heard the gospel -- you should clothe them. You should send out missionaries. They just don't know. It's the people who do know, who have the opposite idea, whom you hate.
reason: Nowadays the political lines seem increasingly blurry, but there were periods in the 20th century when it seemed you could draw some lines.
Sterling: Right now, the Republicans are the party of reckless spending, and the Democrats are the party of responsibility and the balanced budget.
reason: Not many of us saw that coming.
Sterling: In the 17th century, the guys with short hair were the radicals and the guys with long hair were the royalists. The signifiers move, and the issues move from place to place, but there are certain psychological aspects to human social organization that -- I wouldn't call them timeless, but they are commonalities.
I also like to experiment with them. I like to experiment with the media. I'd like to see what people can do with the Internet that they cannot do on paper. And there are certain things one can do that are not worth doing. Like I can set up a discussion group that's open to everybody! And that is not worth doing. It's sort of proven that it immediately turns into a cesspool because it's badly designed.
What I've got in Viridian lists are things like: How do I attract people's attention? How do I not attract too many people's attention? How do I attract interest groups and not alienate other interest groups? How do I move ideas from one interest group to another interest group?
reason: You did something clever by declaring yourself a pope-emperor of the Viridian Greens -- simultaneously declaring yourself as a leader and putting an ironic distance between yourself and that role.
Sterling: "Pope" is from surrealism. For someone to call himself a pope is not a new thing.
reason: I know, but you're a pope-hyphenate. That's new.
Sterling: I'm a pope-emperor. That actually did not work out. The pope doesn't work without a college of cardinals. In the early days of Viridian lists I had that; I would declare people things and give them stars and asterisks and ranks. You can do that for 20 people, but you cannot do it for 3,000.
reason: I've been amused by the spectacle of Harlan Ellison ranting against bulletin boards because they say bad things about him.
Sterling: The guy has great skill in getting headlines when he thinks he needs them. I learned a lot from him, like how to organize a literary movement. You need some controversy. He had a Breton thing, in that he burns friend and foe alike. But he's always been very good at making enemies, and many of his enemies are the proper enemies to make. Spiro Agnew. How many other science fiction writers are upset at the vice president? Norman Spinrad's books were condemned in Parliament. How many other science fiction writers have ever been condemned by the powers that be in a parliamentary inquiry?
reason: You're envious.
Sterling: No, I'm not envious. I'm respectful. If I were envious I'd say, "How come I don't get as much money as Michael Moorcock?"
reason: But don't you want to be condemned in Parliament at least once?
Sterling: I want to testify to Congress, but I've done that. I think it's an improvement over being condemned in Parliament: to be a cyberpunk testifying in Congress. This guy is a science fiction writer, and he's here before our panel. You want to be in a situation where you can screw with their heads.
reason: One of the distressing insights of working in D.C. is the extent to which the panel of witnesses at a congressional hearing is a kind of theater. And whether it serves as input to anybody's thinking is highly questionable.
Sterling: It's not that Congress doesn't listen to science fiction writers. They shouldn't, really. They should have never listened to Newt Gingrich, that's for sure, and he's a science fiction writer.
Shelley said poets are the unacknowledged legislators of the world. The truth is that legislators are the unacknowledged poets of the world. They're going to remain unacknowledged. If you talk to anyone who is in power, they never think they have enough to get anything done. No one has ever said, "I have too much power; some of my power should be devolved." It's always, "I'm president, and the Senate is driving me nuts!"]]>
In Harry Potter and the Prisoner of Azkaban, the young student wizard Harry Potter is pursued by a horde of creatures called Dementors. To make a long, well-plotted story far too short, a future version of Harry suddenly appears and waves his magic wand, reciting the spell "Expecto Petronum!" Thus Future Harry manages to scare away the Dementors, protecting the Harry of the present.
The transition from analog broadcast television to digital broadcast television (DTV), now an enshrined part of American broadcasting policy, faces its own set of Dementors -- a horde of technical, legal, economic, and social problems. Taken together, the problems look as unbeatable as any monster. Making things worse, many factions with a stake in the outcome are at war over such issues as technology mandates, copyright protection, and fair use.
But what if we could somehow look back from the future to today's troubled present debate, wave our wands, and magically defeat the problems that bedevil the DTV transition? Such magic is beyond us mere muggles (as Harry's fellow wizards disparage non-magical humans). But it is possible to look back from the future we have long been imagining -- one in which various consumer electronics and information technologies have converged, and in which the broadband Internet reaches every home. From there, we can come up with our own version of a magical solution.
It's fair to ask why we even need a solution, other than letting our DTV industrial policy collapse under the weight of its own mistakes. The short answer is this: There's much more than digital television at stake. Bad government actions in this sphere -- and you can be sure that Congress and the Federal Communications Commission will act rather than refrain from acting -- could permanently shoehorn part or all of the computer revolution under government-driven design control. Not only would this likely kill the dynamism of the information-technology sector, but it is unlikely to do much to protect copyright interests.
Worse, by slowing technical innovation, the Hollywood studios may end up shooting themselves in the foot, since digital innovations have both lowered production costs and let new features and effects be included in modern TV and movies. Since our government is dead-set on taking action, the question becomes one of helping our regulatory Harry Potters invoke the most innovation-friendly spell rather than (as might otherwise be preferable) giving up the magic of regulation altogether.
Before we can outline a solution, we have to take a look at the problems. A list follows of the issues each set of stakeholders sees at the center of the transition to DTV. One might reasonably dispute some of the groups' assertions, but for the sake of argument I'll treat all their primary points as essentially valid. Even with that understanding, as we'll see, there may be a win-win solution for all the major players -- especially consumers.
Problems for content companies. Motion picture studios, TV networks, and other companies that produce, publish, or distribute content worry that DTV will allow viewers to record high-quality content, then recirculate it through the Internet or other media, à la Napster. Such copying could undermine the revenue potential of high-quality content, which otherwise could be resold to local broadcasters through syndication or repackaged as VHS tapes and DVDs for sale or rental.
One proposed fix, widely advocated within the content industries, is to "mark" all commercial content that needs to be controlled -- perhaps with a broadcast flag (a string of bits contained in the digital broadcasting stream) or perhaps with watermark technology (a hidden mark designed to survive digital-to-analog conversions, as well as the conversions of content that occur routinely in computers and consumer electronics).
Such marking solutions, however, produce another set of problems. To look for the marks, an unprecedentedly broad range of technologies would be required. Plus, the government would have to standardize the marking technologies. And broad sectors of the information technology, consumer electronics, and communications fields would have to be radically rebuilt. Some industrial sectors -- especially those that produce niche digital-manipulation devices (such as Formac, whose product line converts TV to digital video and back again) or personal video recorder systems (such as TiVo) -- might be wiped out by the cost of the redesign and by limits on developing new products.
Without government regulation and oversight, the marking approach can't work. Unless it's required by law, electronics manufacturers would have little incentive to encumber digital devices with the necessary features. Import regulations would be needed to prevent entry of noncompliant devices. And we might need new regulatory controls over analog-to-digital and digital-to-analog recording technologies. Such devices are currently ubiquitous and cheap, but because they may ignore or even strip out the marks placed in digital content, they form part of what the content industry calls "the analog hole" -- their unsightly term for analog devices' tendency to ignore or sidestep digitally based protections, thus creating a gap through which protected digital content can leak.
Control of analog-to-digital or digital-to-analog technologies may make them more expensive and less functional. Worse, it may add hidden, unanticipated costs to devices not traditionally considered within the FCC's jurisdiction, such as astronomical observation tools and certain types of medical monitors. And don't forget your cell phone, whose cheap microphone takes the analog waveforms of your voice and digitizes them for transmission.
Needless to say, the marking-plus-regulation solution puts the content sector at odds with other industries and with consumers. This has led to trench warfare in the legislature, in the courts, and in public opinion, with each side throwing all its resources into gaining a few feet here (as with the battles over the broadcast flag) or blocking an enemy's advance there (as with the effective killing of Sen. Fritz Holling's (D-S.C.) omnibus copyright-protection legislation, which first brought the struggle between the Hollywood studios and the tech companies into the public eye).
Problems for hardware, software, and Internet companies. Many segments of these industries are also facing flattening sales. The sector as a whole is acutely aware that customers will reject new products that may be more limited than older ones in how they deal with both commercial and user-generated content. The computer and software industries in particular take it as a given that consumers expect more and better functionality and faster processing speeds. They don't want to hear these sorts of complaints: "Every second my computer spends checking whether I'm making an unauthorized copy is a cycle it isn't using on my work!...Why can't I move digital video I made myself back and forth between my computer and my digital video camera?...This computer takes longer to load media files than my old one did!"
Worse yet, the content industry's proposal has to make many classes of hardware and software "untamperable" -- that is, difficult to modify, or "closed." Yet open platforms such as the PC and the Internet have by their very openness encouraged innovation. The results include the Internet as we now know it, the World Wide Web, Linux and other open source software, and graphical browsers. Interestingly, rapid development in this sector has also produced technologies that make filmmaking, music recording, and other forms of content generation much cheaper and more accessible than they used to be.
The Linux problem is particularly acute, as Linux-based operating systems are among the few serious competitors to Microsoft remaining in the operating system market. Linux programs are distributed with their "source code" or simply distributed as source code, which means that they're inherently open and tamperable. A regulatory requirement that Linux-based media players be untamperable would in effect outlaw Linux versions of such products.
Fine, you say: Then the law should recognize the competitive value of open source software and carve out an exception from the untamperability requirement. But that wouldn't just be a big hole in the content-protecting regulatory scheme. It would actually put proprietary software companies at a disadvantage in competing with Linux in the media player market, since Linux-based players could be modified by any programmer to add functionality or remove content protections. In effect, the "untamperability" requirement creates a dilemma -- either permanently hobble open source software (and perhaps lock in Microsoft's current market dominance), or permanently disadvantage proprietary software, including Microsoft's (and thus promote Linux as a matter of industrial policy).
For Internet companies, any regulatory obligation to monitor for copyrighted content signifies a substantial redesign of the Net as it has existed and grown since its beginnings more than three decades ago. Peer-to-peer file trading did not begin with Napster. It is, in a deep sense, a part of the Internet's fundamental design. The Net was created so computers could share data and other resources on a distributed, decentralized network. Digital music files are just another kind of data.
Furthermore, making copies is a fundamental part of what each computer does. It copies information from one part of memory to another, from memory to hard drive and back again, from memory to video, and so on. The Internet, too, works by copying -- transmitted data are typically divided into "packets," which are then copied and recopied from computer to computer until reproductions of all the packets reach the destination computer and are reunited into a perfect copy of the transmitted information.
Problems for Congress. For a number of policy reasons -- the perceived benefit to the public, a purportedly more efficient use of the spectrum, higher-quality broadcasts -- Congress has required television broadcasters to move from analog to digital transmissions. It established the year 2006 as a nominal deadline for the shift, assuming that the general public would see the value of DTV and buy new television sets, with digital tuners, to take advantage of these features. In effect, Congress "loaned" broadcasters extra spectrum to develop DTV (and the DTV audience), but the loan has not produced the expected consumer buy-in.
Making things still more problematic, Congress based its tax and budgeting decisions for the next few years on the assumption that the original "analog spectrum" would be returned. It could then be used for public service purposes (public safety, a larger unlicensed band) or auctioned off, with the latter plan generating perhaps tens of billions of dollars for the government.
As we approach the deadline, the increasingly evident lack of significant consumer purchases of (relatively expensive) DTV receivers means Congress faces the prospect of telling voters that their analog TVs -- including the big new ones they buy just this year, or next year, or in 2005 -- will either be wholly obsolete or require a converter box to keep working. There is no serious doubt that voters will be unhappy about having to buy new, more expensive TVs, or somewhat less expensive adapter boxes, just because Congress has said they must. (An unfortunate side effect of the converter interim solution is that, by adapting legacy devices to receive digital broadcasts, the government may in effect be equipping home-entertainment equipment to facilitate the very "analog hole" infringement that troubles content companies.)
Congress could, of course, push back the spectrum give-back deadline. Broadcasters may also be able to use a loophole in the original deal to push it back themselves. But this would throw off budget and tax calculations and force a revenue shortfall, which in turn would force Congress to make other hard decisions that also may irritate or disappoint voters.
Problems for consumer electronics companies. Quite rationally, the consumer electronics sector likes selling high-margin, high-quality, high-resolution TV display devices. It also knows that just about all of its current customer base for such devices gets its content from cable, satellite, or DVD, and scarcely ever from over-the-air digital broad-casting.
Tuner mandates, such as the FCC's recent requirement that all high-definition televisions (HDTVs) carry both analog and digital TV-signal receivers, mean an added expense per unit at a time when the industry is hoping economies of scale will reduce their costs and get more buyers into stores for crisper, even "cinema-quality," TV displays. Consumer electronics companies now have an incentive to move entirely into the computer-monitor business and abandon selling "TV sets" (monitors plus tuners) altogether. This would allow them to escape the tuner mandates and continue to sell high-quality visual displays that would function equally well on computers or as part of home entertainment systems -- attached, for example, to cable set-top boxes.
Meanwhile, one looming problem has not even begun to be addressed: In-the-field tests of television sets equipped with digital tuners suggest that DTV reception -- at least under the technical standard digital broadcasters are currently required to use, dubbed 8VSB -- is not as reliable as analog broadcast reception. In other words, the FCC is requiring manufacturers to add digital tuners that, while spiffy on the rare occasions that they do work, are nowhere near as reliable as plain old analog TV receivers. This is not the kind of policy that inspires people to buy consumer electronics.
Problems for broadcasters. Broadcasters aren't pleased that digital transmissions are less reliably received than analog broadcasts. Nor are they happy that the bill for "loaned" spectrum will soon come due, especially given most Americans' unwillingness to buy DTV products. If the transition is imposed on the scheduled date, there will be an abrupt decline in the advertising audience base for their broadcasts -- especially when compared to those of cable and satellite.
Furthermore, the generally high costs of refitting broadcasting plants to enable DTV transmissions are, for many stations, an unfunded mandate -- expenses that they are required by law to make as licensees (and may already have begun to make) but that do not translate (or haven't yet translated) into additional revenue.
Historically, one argument for the transition to DTV has been to enable broadcasters to compete against the heretofore more reliable signal quality of cable- and satellite-delivered TV content. It would be ironic if a policy designed to preserve free broadcast TV were in fact to hasten its end.
Problems for consumers. By voting with their wallets, most consumers have demonstrated that they do not yet value DTV's benefits enough to invest seriously in new equipment for it. Consumers who rely primarily on over-the-air broadcast signals may find that their new digital TV sets receive broadcast content less reliably than their old analog sets did. This federally compelled downgrade in reception reliability will likely make a significant number of broadcast-reliant voters unhappy.
In addition, efforts to control analog input-output interfaces, recorders, and display devices, in order to ensure the effectiveness of some marking schemes, may spell the end of plug-and-play interoperability among consumer electronics devices -- a convenience that every Radio Shack or Sears customer has come to expect.
Is it possible to create a compromise that addresses the concerns of all these groups? Politically speaking, it might not be. As a matter of public policy, though, it might. I lay out that compromise here, but first, a warning and a request: Please don't hate me for suggesting that the FCC impose a new set of regulations when, in fact, we'd probably be better off if it sat this one out. I'm no fan of the commission, and remain appropriately skeptical of its expansive role in regulating broadcasting. But the fact is that the FCC is under immense pressure from Congress to further the DTV transition. It will almost certainly choose to act, and whatever it chooses to do will probably be big. If we can't stop the commission from acting at all, we should help it find a plan that, at worst, does no harm. At best -- if the stars line up and we hold our mouths just right -- it might actually solve the DTV problem with minimal costs to the rest of the us.
The Harry Potter fix begins with three basic steps.
First, Congress would keep its 2006 deadline for the return of extra spectrum but allow broadcasters to choose which spectrum they return. They could keep their old analog spectrum or their new digital spectrum, but they'd have to give back one or the other. (This step assumes for the sake of simplicity that spectrum is fungible. The actual implementation of the giveback will be somewhat more complicated due to technical allocation issues, but compared to the regulatory problems of the current state of affairs it would be relatively straightforward.)
Second, TV stations could continue analog broadcasting if they wished. Those that wanted to continue analog broadcasting but continue to build out to, or experiment with, digital broadcasting could choose to buy or license additional spectrum, more of which should be available once the "loaned" spectrum has been reclaimed by the Commission, acting as a proxy for the general public. Furthermore, broadcasters who continue to transmit digital signals would be allowed to choose between the 8VSB standard and any other standard that might work more effectively (e.g., the COFDM standard now prevalent in Europe).
Third, the FCC would require all national networks, as a condition of continuing to hold their licenses, to transmit their prime time and late-night programming via the Internet. Local broadcast licensees likewise would be required to Netcast their locally generated programming.
"Wait a minute," you may shout at this suggestion. Internet distribution of licensed creative content? Won't that worry copyright holders? Aren't such worries the very motivation for the technology mandates they keep proposing?
Sure they are. That's why the FCC must also allow content companies to insist that delivery of licensed content be done through one or more secure digital multimedia systems, such as RealPlayer, QuickTime Streaming Video, Windows Media Player, or various Palladium-based schemes soon to be deployed. All of these systems, plus a number of others, offer reasonably secure delivery that prevents all but the most determined viewers from making unauthorized copies of content. They are not entirely hack-proof, but that is also true (indeed, much more true) of the proposed marking schemes. In purely practical terms, they already offer more protection than such schemes, not least because they are less costly to implement. Of course, broadcasters may choose to deliver some of their own content in the clear, and there may be occasions when copyright holders want to authorize or even encourage broadcasters to deliver some of their content in that manner.
What are the advantages to this three-part plan?
First and foremost, it takes advantage of market forces that are already in play. Consider the advantage to content companies in the secure-delivery-system requirement. Market competition already exists in this sector, and there are several major players, including Real Networks, Microsoft, and Apple. Market-driven solutions can evolve more rapidly and respond more quickly to new copyright security problems than any government-imposed standard can. For antitrust reasons, the FCC would not want a regulation that let content licensors dictate which one of the competing systems must be used -- that would permit them to leverage their copyright interests into control over commerce in areas outside of their copyrights. It would nevertheless be possible for the FCC to allow content creators to insist that licensees select a system that meets specified technology-neutral minimum security standards.
Another advantage: Secure Internet delivery of high-quality content would expose more Americans to the quality of high-definition TV and other digital offerings. Recent statistics suggest that about 70 percent of American households have personal computers -- about the same share that has cable. Current PC monitors, including analog ones, are excellent DTV display devices. DTV-Internet offerings may spur demand for even better technologies.
It's true that even the fastest home broadband connections require many hours of download time to deliver digital television. Content companies typically acknowledge that their marking proposals are anticipatory measures. That is, they are addressing not a current problem but a prospective problem they believe will appear when Internet bandwidth is expanded.
But we also know that, for infringers at least, waiting hours for downloads to complete has not been considered a serious problem, even on the current Internet. In addition, it is widely believed (although hotly disputed by many telecom observers) that Internet bandwidth to the home will continue to increase over the coming years. Many early Napster users waited a long time for MP3 files to complete their downloading over 56-kilobyte modem connections. The same is now true for those who download movie and television files via broadband.
This points to a larger development: Live delivery of television is increasingly unimportant to Americans, a fact that helps explain the widespread use of VCRs, TiVo, and other devices for time shifting. Current Internet bandwidth rarely if ever supports live high-definition TV. But we may reasonably assume that a jumpstarted demand for broadband-delivered digital television will fund the kind of infrastructure build-out required to enable quick or even real-time high-definition TV delivery. And since the FCC is concerned with promoting high-definition TV broadcasting we may note here that consumers who've found that their appetites have been whetted for high-definition TV, and who want it faster than the Internet can deliver it, have an obvious solution that also fulfills the Commission's mandate. To wit, they can buy an high-definition TV set and (assuming broadcasters iron out those pesky 8VSB transmission problems) get their must-see TV live, 24 hours a day, from over-the-air broadcasting sources.
Meanwhile, nonsimultaneous delivery of premium content may constitute a new application for pure peer-to-peer distribution. (It would be a great irony if the Internet's peer-to-peer functionality, once regarded as an unmitigated problem, could be harnessed to enhance the delivery of commercial content in ways that financially benefit content producers even as they increase consumer choice.)
And if it doesn't work out that way -- well, then the point is moot. If there is not enough bandwidth to allow a legal market in high-definition TV content, it follows that there isn't enough bandwidth to allow substantial piracy of it either.
The consumer electronics sector would also benefit: It would still get to sell high-quality computer monitors (essentially TVs without tuners) and might sell many more as audiences discovered alternative ways to access high-definition DTV content.
The information technology sector, remaining unencumbered by the government's technology mandates, would get to compete to develop secure content delivery systems. Provided the choice of secure delivery systems is left to the broadcaster, competition alone ought to be enough incentive for continuous innovation in these delivery components, driving down price while improving ease of use, quantity of features, and quality of playback. (It's instructive, in this connection, that consumer feedback about copy protection schemes revolutionized the software industry in the 1980s. The result was that most commercial software companies either abandoned copy protection or developed protection schemes, such as registration, that were less onerous for ordinary users.)
Broadcasters would be able to approach the shift to digital with a lot more flexibility. Local broadcasters in particular would gain. Not only would they be able to preserve their existing geographically based audiences (by not requiring them to abandon their old TVs and buy more expensive ones), but they would be able to reach new audiences around the world. Diversity of programming would be advanced, since an innovative local program would have the potential to reach a national or international audience. (This has already been the experience of radio stations that have echoed their programming to the Internet.) And reaching that larger audience would mean more advertising dollars for the station.
Consumers, too, would benefit, and not just because they wouldn't have to junk old TVs. They could still do fair-use time shifting (and other legal but unlicensed uses of commercial content) with their VCRs, TVs, TiVos, ReplayTVs, eyeTVs, WinTVs, and other digital and analog devices, including PC capture devices, as long as there was continued analog distribution. Perhaps more important, market competition among secure delivery systems might begin to offer similar fair-use features in the purely digital arena as well, especially once we've refueled the market for competition in the delivery-system sector.
Meanwhile, broadcasters could experiment with offering "must-see" TV at times convenient to audiences, or more than once. As far as the TV viewer is concerned, there would be an immediate improvement in convenience: Instead of waiting until Thursday night to see the new episode of Friends, you could click on the Friends Web link anytime you wanted during the week the current episode was showing.
That, of course, is just one possibility -- lots of experiments would be possible. Another approach would be to give viewers a choice between "free" (that is, advertising-supported) prime time content and subscription-based, ad-free versions of the same programming. In other words, a viewer could choose to treat a network more like NBC or more like HBO. Perhaps you even could choose on Monday night to receive Friends on Wednesday. Since live broadcasting is increasingly unimportant to many TV viewers, your advance choice would allow the program to be buffered either in your system or in nearby servers, to be displayed on command. Such choices might matter more to viewers than any high-quality images.
And Congress? In a nutshell, it would be able to promote a transition to DTV without imposing any new expenses on TV consumers or imperiling "free" broadcasting. In fact, it would offer an expanded set of models for how free broadcasting can profitably work. It would get its "loaned" spectrum back and would be able to auction most of it off, consistent with budgetary plans, while reallocating portions of the spectrum for public use.
In short, every major stakeholder bloc would benefit, and consumers would be inconvenienced minimally, if at all.
Harry's wand-waving plan could work, and there may be other plans that do even better. But we'll only be able to weigh these alternatives if we set ourselves free to find alternatives to the current deadlocks, and resolve to avoid policy solutions that are worse than the problems. Both Congress and the FCC have been known to rival even J.K. Rowling in keeping us frustrated while we wait to find out how the story turns out. Let's hope we don't have to wait until 2006 for the next installment. And let's insist on a happy ending.]]>
If you have a fast computer and a fast Internet connection, you make Hollywood nervous. Movie and TV studios are worried not because of what you're doing now, but because of what you might do in the near future: grab digital content with your computer and rebroadcast it online.
Which is why the studios, along with other content providers, have begun a campaign to stop you from ever being able to do such a thing. As music software designer Selene Makarios puts it, this effort represents "little less than an attempt to outlaw general-purpose computers."
Maybe you loved Napster or maybe you hated it, but the right to start a Napster, or to infringe copyright and get away with it, is not what's at issue here. At some date in the near future, perhaps as early as 2010, people may no longer be able to do the kinds of things they routinely do with their digital tools today. They may no longer be able, for example, to move music or video files easily from one of their computers to another, even if the other is a few feet away in the same house. Their music collections, reduced to MP3s, may be movable to a limited extent, unless their hardware doesn't allow it. The digital videos they shot in 1999 may be unplayable on their desktop and laptop computers.
Programmers trying to come up with, say, the next great version of the Linux operating system may find their development efforts put them at risk of civil and criminal penalties. Indeed, their sons and daughters in grade school computer classes may face similar risks if the broadest of the changes now being proposed -- a ban on software, hardware, and any other digital-transmission technology that does not incorporate copyright protection -- becomes law.
Whether this scenario comes to pass depends mainly on the outcome of an emerging struggle between the content industries and the information technology industries. The Content Faction includes copyright holders such as movie and TV studios, record companies, and book publishers. The Tech Faction includes computer makers, software companies, and manufacturers of related devices such as CD burners, MP3 players, and Internet routers. In this war over the future shape of digital technology, it's computer users who may suffer the collateral damage.
Digital television will be the first battleground. Unlike DVD movies, which are encrypted on the disk and decrypted every time they're played, digital broadcast television has to be unencrypted. For one thing, the Federal Communications Commission requires that broadcast television be sent "in the clear." (The rationale is that broadcasters are custodians of a public resource -- the part of the electromagnetic spectrum used for television -- and therefore have to make whatever they pump into that spectrum available to everyone.) Then, too, digital TV has to reach existing digital television sets, which cannot decode encrypted broadcasts.
The lack of encryption, coupled with digital TV's high quality, poses a problem for copyright holders. If a home viewer can find a way to copy the content of a digital broadcast, he or she can reproduce it digitally over the Internet (or elsewhere), and everybody can get that high-quality digital content for free. This possibility worries the movie and TV studios, which repackage old television shows for sale to individuals as DVDs or videotapes and sell cable channels and broadcast stations the right to air reruns. Who is going to buy DVDs or tapes of TV shows or movies they can get for free online through peer-to-peer file sharing? And if everybody is trading high-quality digital copies of Buffy the Vampire Slayer or Law & Order over the Internet, who's going to watch the reruns on, respectively, Fox's F/X network or the Arts & Entertainment channel? What advertisers are going to sponsor those shows when their complete runs are available online to viewers, commercial-free, through some successor to Napster or Gnutella?
The Content Faction has a plan to prevent this situation from developing -- a plan Hollywood's copyright holders hope will work for music and every other kind of content. The first part of the plan involves incorporating a "watermark" into digital TV signals. Invisible to viewers, the watermark would contain information telling home entertainment systems whether to allow copying and, if so, how much. But the watermark won't work without home entertainment equipment that is designed to understand the information and limit copying accordingly. Such a system has not been developed yet, but in theory it could apply to all digital media.
There are some problems with this scheme. If Prince-ton computer scientist Edward Felten is right, a watermark that's invisible to the audience yet easily detected by machines will be relatively easy to remove. To put it simply, if you can't see it, you won't miss it when it's gone. Which is why the components of new home entertainment systems probably would have to be designed not to play unwatermarked content. Otherwise, all you've done is develop an incentive for both inquisitive hackers and copyright "pirates" to find a way to strip out the watermarks. But if the new entertainment systems won't play content without watermarks, they won't work with old digital videos or MP3s.
The implications of a watermark system extend beyond the standard components of today's home entertainment systems: VCRs, CD and DVD players, TV and radio receivers, amplifiers, and speakers. What tech industry pundits call "convergence" means that one other component is increasingly likely to be part of home entertainment setups: the personal computer. Says Emery Simon, special counsel to the Business Software Alliance (an anti-piracy trade group), "That's the multipurpose device that has them terrified, that will result in leaking [copyrighted content] all over the world."
This prospect is what Disney CEO Michael Eisner had in mind when, in a 2000 speech to Congress, he warned of "the perilous irony of the digital age." Eisner's view of the problem is shared by virtually everybody in the movie industry: "Just as computers make it possible to create remarkably pristine images, they also make it possible to make remarkably pristine copies."
Because computers are potentially very efficient copying machines, and because the Internet is potentially a very efficient distribution mechanism, the Content Faction has set out to restructure the digital world. It wants to change not just the Internet but every computer and digital tool, online or off, that might be used to make unauthorized copies. It wants all such technologies to incorporate "digital rights management" (DRM) -- features that prevent copyright infringement.
At stake in this campaign, according to Eisner, is "the future of the American entertainment industry, the future of American consumers, the future of America's balance of international trade." Lobbyists at News Corporation, Vivendi Universal S.A., and pretty much every other company whose chief product is content agree with Eisner, the Content Faction's acknowledged leader, about the magnitude of the issue (although foreign-based companies such as Bertelsmann A.G. are understandably less concerned about the U.S. balance of trade). All of them tend to talk about the problems posed by computers, digital technology, and the Internet in apocalyptic terms.
The companies whose bailiwick is computers, digital technology, and the Internet tend to take a different view. Of course, Tech Faction members, which include Microsoft, IBM, Hewlett-Packard, Cisco Systems, and Adobe, also value copyright. (Adobe, for instance, last year instigated the prosecution of a Russian computer programmer who cracked the company's encryption-based e-book security scheme.) And many of them -- especially those who have been developing their own DRM technologies -- want to see a world in which copyrighted works are reasonably well-protected. Yet if you ask them what they think of the Content Faction's agenda for the digital world, you invariably get something similar to the position expressed by Emery Simon of the Business Software Alliance (BSA), a group that includes the Tech Faction's major players: "We are strongly antipiracy, but we think mandating these protections is an abysmally stupid idea."
The two factions' agreement about the importance of protecting copyrighted works online makes them uncomfortable to be on opposite sides now. The Tech Faction and the Content Faction both supported the Digital Millennium Copyright Act (DMCA) of 1998, and both like it pretty much as it is. The DMCA prohibits the creation, dissemination, and use of tools that circumvent DRM technologies.
Where the two factions differ is on the issue of whether the DMCA is enough. The BSA's Simon views the DMCA as a well-crafted piece of legislation but thinks efforts to build DRM into every digital device are overreaching. And in taped remarks at a December business technology conference in Washington, D.C., Intel CEO Craig Barrett spoke out against a bill proposed (but not yet formally introduced) by Sen. Ernest "Fritz" Hollings (D-S.C.) that would mandate a national copyright protection standard. The Content Faction says it needs such a standard to survive.
A few companies are so big and diverse that they don't fall easily into either faction. Take AOL Time Warner. The movie studios and other content producers under its umbrella tend to favor efforts that lock down cyberspace, but AOL itself, along with some of the company's cable subsidiaries, tends to resist any effort to mandate universal DRM. "We like the DMCA," says Jill Lesser, AOL Time Warner's senior vice president for domestic public policy. "There isn't from our perspective a need for additional remedies." AOL's reluctance to embrace the Hollings legislation explains why the Motion Picture Association of America, of which AOL Time Warner is a prominent member, remains officially neutral on the bill.
But Lesser needs only to take a breath before she adds that something like the Hollings bill, at least with regard to digital TV, may be a good idea. Industry progress toward an agreement for copyright protection in digital television hasn't proceeded as quickly as the content companies would like. "Maybe a mandate is the way to get there more quickly," she says.
Napster is the specter that's haunting the Content Faction. Although the free version of Napster has been essentially wiped out by music-company litigation (a new version of the file sharing system is being developed by Bertelsmann A.G.), the Napster phenomenon still casts a long shadow. One technologist for News Corporation who is working on a watermark-based DRM scheme says he thinks Napster signals the end of the music industry. He argues that since record companies generally have most of their catalogs available on unprotected CDs, which can be "ripped" and duplicated with CD burners or distributed over the Internet as MP3 files, music lovers already have gotten out of the habit of paying for records, which means an end to big profits and thus an end to big record companies. "Within five years," he says, "the music industry will be a cottage industry."
Matthew Gerson, vice president for public policy at Vivendi Universal, which produces and sells both music (Universal Music Group) and movies (Universal Studios), is quick to dispute such predictions. "We know that if we build a safe, consumer-friendly site that has all the bells and whistles and features that music fans want, it will flourish," he says. "My hunch is that fans will have no trouble paying for the music that they love and compensating the artists who bring it to them -- established stars as well as the new voices the labels introduce year after year."
But maintaining that model, in which big music companies play an important filtering role for audiences, depends both on large streams of revenue and on control of copyrighted works. The Internet and digital technology could change all that, cutting off the revenue stream by moving music consumers to a world in which trading music online for free is the norm. (Some recording artists, including Don Henley and Courtney Love, might welcome the change. They question whether the music companies truly serve artists' interests as well as they serve their own corporate interests.) At the same time, a technical/legal scheme that perfects control of digital content creates new revenue opportunities: The music companies, for example, could "rent" or "license" music to us in a protected format rather than sell copies outright.
The Hollings legislation, dubbed the Security Systems Standards and Certification Act, is designed to help content companies turn the potential peril of digital technology into profits. In the drafts available last fall, the bill would make it a civil offense for anyone to develop a new computer or operating system (or any other digital tool that makes copies) that does not incorporate a federally approved security standard preventing unlicensed copying. The bill would set up a scheme under which private companies met and approved the security standard. It would require that the standard be adopted within 18 months; if that deadline passed without agreement on a standard, the government would step in and impose one. In at least one version, the bill would also make it a felony to remove the watermark from copyrighted content or to connect a computer that sidesteps DRM technology to the Internet.
The Hollings bill applies to any digital technology, not just TV. It's clear why the bill's supporters want its scope to be so broad: If the watermark scheme works for digital TV, creating a system for labeling copyrighted works and for designing consumer electronics to prevent unlicensed copying, it should be possible to make it work for the rest of the digital world, including the Internet.
According to Capitol Hill sources, the Hollings bill was inspired by Eisner's 2000 speech to Congress. The people who had a hand in drawing up the legislation do not describe it in terms of protecting embattled copyright interests. Instead, they say it's a proactive measure designed to promote both digital content and increased use of high-speed Internet services. They note that consumer adoption of broadband services (such as cable modems and DSL) has been slower than predicted. Consequently, the cable and phone companies have too small a consumer base to justify building out their broadband capacity very quickly or very far. But if Hollywood could be assured that its content would be protected on the broadband Internet, the theory goes, it would offer more compelling online content, which would inspire greater consumer demand for high-speed service.
This theory, which assumes that what people really want from the Internet is more TV and movies, is questionable, but it has a lot of currency in Washington. And as the debate over broadband deregulation shows, Congress wants to find a way to take credit for a quicker rollout of faster Internet service.
It was the Hollings bill that brought the war between the Content Faction and the Tech Faction out into the open. And in the near term it's the Hollings bill that is likely to be the flash point for the debate about copyright protection standards. A congressional hearing on Hollings' proposal was held in late February, but no bill has been formally introduced.
One way to understand the conflict between the Content Faction and the Tech Faction is to look at how they describe their customers. For the content industries, they're "consumers." By contrast, the information technology companies talk about "users."
If you see people as consumers, you control access to what you offer, and you do everything you can to prevent theft, for the same reason supermarkets have cameras by the door and bookstores have electronic theft detectors. Allowing people to take stuff for free is inconsistent with your business model.
But if you see people as users, you want to give them more features and power at cheaper prices. The impulse to empower users was at the heart of the microcomputer revolution: Steve Jobs and Steve Wozniak wanted to put computing power into ordinary people's hands, and that's why they founded Apple Computer. If this is your approach -- enabling people to do new things -- it's hard to adjust to the idea of building in limitations.
In a basic sense, moving bits around from hard drives to RAM to screen and back again, with 100 percent accuracy in copying, is simply what computers do. To the Tech Faction, building DRM into computers, limiting how they perform their basic functions, means turning them into special-purpose appliances, something like a toaster. This approach is anathema to the user empowerment philosophy that drove the PC revolution.
The Tech Faction believes people should be able to do whatever they want with their digital tools, except to the extent that copyrighted works are walled off by DRM. The Content Faction believes the digital world isn't safe unless every tool also functions as a copyright policeman.
At the heart of this argument are two questions: whether computer users can continue to enjoy the capabilities computers have had since their invention, and whether the content companies can survive in a world where users have those capabilities. What's been missing from the debate so far has been the users themselves, although some public interest groups are gearing up to tackle the issue. Users may well take the approach I would take: If computers and software start shipping in a hamstrung form, mandated by government, I'll quit buying new equipment. Why trade in last year's feature-rich laptop for a new one that, while faster, has fewer capabilities?
The Content Faction may be right that what people really want is compelling content over broadband. It may even be the case that, if they were asked, most people would be willing to trade the open, robust, relatively simple tools they now have for a more constrained digital world in which they have more content choices. But for now, nobody's asking ordinary people what they want.]]>
Before September 11, U.S. policy toward pharmaceutical patents was clear: The interests of the patent holder came first. However, the anthrax scare that surfaced in October has managed to shake that policy to its roots. By the time the shaking was done and the original scare had subsided, Bayer Corporation, the Pittsburgh-based American subsidiary of the German pharmaceutical giant Bayer AG, had managed to hold onto its patent monopoly over the manufacture and sale of the powerful antibiotic ciprofloxacin, now familiar to Americans by its brand name, Cipro.
How that happened provides a lesson in how both public health issues and certain types of intellectual property rights have been affected by the terrorist attacks on the World Trade Center and the Pentagon, as well as by the mail-based anthrax attacks. Perhaps more important, in a world in which threats of bioterror are only likely to increase, the tug of war between Bayer and the government over Cipro hints at how even governments that nominally give patent protection a high priority are likely to compromise their principles in the face of a perceived public health threat -- at least when that threat faces their own citizens.
Increasingly over the last two decades, American pharmaceutical policy has favored the interests of the patent holder. The U.S. has labored to discourage foreign governments from breaking pharmaceutical patents and buying unauthorized generics from India or China -- two nations widely recognized as the major exporters of unauthorized generic drugs. When necessary, the U.S. has used trade barriers and various other types of political pressure to keep non-compliant governments in line.
"For 20 years, it's been the policy of the U.S. government to tighten the screws on foreign governments over intellectual property rights, particularly with medicine," says James Love, director of the Consumer Project on Technology, a Washington, D.C.-based public interest group critical of the pharmaceutical industry.
This approach is reflected in Article 31 of the World Trade Organization's Trade Related Agreement on Intellectual Property Rights (TRIPS). That agreement requires governments to honor patents. If a government needs or wants to exploit a patented invention, it must ask the patent holder for authorization and offer "reasonable compensation" for the privilege.
Love, whose group promotes global access to "essential" medicines, says the hard-line American policy "started in the Reagan era," when the push toward globalized trade began. To critics like Love this policy seems harsh, but its logic is clear: Without a worldwide framework in which each nation honors and enforces other nations' patent rights, it's possible for nations not bound by patent agreements to flood the world market with cheap generic drugs. Drug companies wouldn't be able to price their products high enough to guarantee a return on their research investment.
Furthermore, the argument goes, if you undermine the patent incentive system, you won't get the new drugs that are needed to address new health crises. "You wouldn't have Cipro if there wasn't a patent," says Mark Grayson, senior director of public affairs for the Pharmaceutical Research and Manufacturers of America (PhRMA), the drug industry's association in Washington. (See "Goddamn the Pusher Man," April 2001.)
Historically, PhRMA's view has been more or less shared by the U.S. government. So in the late 1990s, when Brazil faced a problem in providing government-subsidized access to affordable AIDS drugs and the Brazilian government authorized the domestic production of generic knock-offs of American drugs, U.S. Trade Representative Robert Zoellick announced that "the U.S. won't hesitate in using its total strength and international laws to modify the situation."
Although the U.S. approves of anti-AIDS generic-drug programs in impoverished countries such as Senegal and Uganda, it stops short of approving compulsory licensing or patent-breaking in so-called Middle Income Countries such as Brazil, which have an adequate gross domestic product and industrial base to support the purchasing of brand-name pharmaceuticals. Given this history of strong patent enforcement by the U.S., Bayer may well have been confident about its own patent rights when anthrax panic triggered a run on Cipro. But Bayer's status was in fact anything but secure.
Bayer's drug division could certainly have used the windfall: Market analysts were predicting that it would likely end 2001 in the red. Cipro was already looking like Bayer's lucky charm; the drug generated $1.6 billion in sales last year for the company, out of $10.1 billion in revenue overall. Sales volume in the aftermath of the anthrax panic could only increase.
Patented in the early '80s, Cipro until recently was best known as a treatment for bladder infections and other, more common conditions than anthrax. It's often the antibiotic of choice when infecting organisms are resistant to other kinds of antibiotics. The period of patent protection is 17�20 years, and the drug's U.S. patent is set to expire in 2003. Cipro was the first drug approved by the Food and Drug Administration for treatment of anthrax infections, receiving the FDA's blessing in 2000, even though the drug had not been tested on humans as an anti-anthrax treatment. (Until a few months ago, no one in the U.S. had had anthrax since the 1970s, so there was no existing base of anthrax patients available for testing.)
Cipro's major anthrax tests were conducted over a decade ago by U.S. Army biowarfare researchers -- on rhesus monkeys. Still, the FDA (and not, surprisingly, Bayer) pushed for, and rushed through, approval of Cipro as an anthrax treatment, primarily because of fears that Iraq's Saddam Hussein might resort to an anthrax-based terror attack. The broad-spectrum antibiotic did not do better than some other antibiotics when the rhesus monkeys were treated, but it had at least one advantage the others lacked. Ciprofloxacin is not part of the penicillin or tetracycline families of antibiotics, which means that if foreign nations (or, for that matter, the U.S.) managed to develop strains of anthrax that were resistant to penicillin or tetracycline, Cipro would remain an effective therapy.
When the first cases of anthrax infection and exposure were publicized, it was only natural that the FDA and the Atlanta-based Centers for Disease Control started recommending prophylactic treatment with Cipro. Accordingly, everyone who was exposed or at risk -- from Tom Brokaw to New York City postal workers -- starting taking Cipro. Even those who weren't at risk found ways to get a prescription. In New York City, there was a sudden run on the drug, and some pharmacies were forced to post signs saying they could issue only 10-day supplies of Cipro.
Suddenly the question became, Would there be enough Cipro to go around? In addition, the U.S. and Canadian governments were entering the market as well -- as buyers in bulk. The U.S. government alone decided to purchase 100 million or more doses.
The government balked, however, at Cipro's price tag. The standard to-the-government price was $1.83 per pill. (The standard wholesale price to pharmacies is about twice that.) There were strong hints that Department of Health and Human Services Secretary Tommy Thompson would "break" the Bayer patent, perhaps through compulsory licensing, if Bayer would not sell to the government at a lower price.
Thompson also stated, somewhat controversially, that the government lacks current statutory authority to sidestep Bayer's patent. James Love and Ralph Nader promptly co-authored a public letter to Thompson arguing that current law -- specifically Title 28, Section 1498, of the United States Code -- was more than adequate authority for such a move. That law provides for "reasonable and entire compensation" to the patent holder when the United States "uses" a patented invention without a license. Compensation is, however, the only remedy -- the patent holder can't sue to stop the government from using his patent.
PhRMA's Grayson disputes this reading of the law. He calls the statute a provision for "eminent domain" compensation, and says it does not trump the U.S.'s obligation as a WTO/TRIPS signatory to try to work with the patent holder first before even considering breaking the patent.
Complicating matters even more was the question of supply. If the U.S. didn't break its patent, could Bayer's limping pharmaceutical division produce hundreds of millions of Cipro doses on a short timeline? Sen. Charles Schumer (D-N.Y.), a longtime critic of the pharmaceutical industry, didn't think so. On October 16, he issued a press release calling for Thompson's Department of Health and Human Services to go ahead and order up generics. "First, Bayer can only produce so much Cipro," said Schumer. "And we should not put our best response to anthrax in the hands of just one manufacturer. Second, buying Cipro only from Bayer -- who charges a lot more than generic manufacturers would -- means we spend a lot more and receive a lot less."
In Grayson's view, this was "political grandstanding," an opportunistic use of the anthrax scare to promote Schumer's longstanding efforts to make generic drugs more available. Schumer had introduced a bill to increase access to generic drugs last May, along with Sen. John McCain (R-Ariz.).
Grayson says he is more inclined to forgive Thompson his early "I'm a tough negotiator" rhetoric. Nicolas Barzoukas, a partner in the Houston office of the law firm Howrey, Simon Arnold & White, insists that the beleaguered HHS secretary "was never planning to break the patent." Barzoukas' firm represents Merck & Company, the country's second-largest drug company in terms of sales. He argues that breaking the Bayer patent would have had hugely negative consequences in the long term. "The problem," says Barzoukas, "is that you can do it [break a patent] one time, but that kills the incentive for drug companies down the road." The pharmaceutical companies responsible for innovative new drugs need to have control of their patents in order to make the kind of profits necessary to subsidize new research. "Forty percent to 50 percent of pharmaceutical innovation takes place in the U.S.," says Barzoukas.
What's more, Barzoukas says, if Bayer really is unable to produce enough Cipro, the fix is still to contract with Bayer. The company can meet new demand by licensing the patent to other manufacturers. This is the kind of resolution that allows Bayer to maintain the long-term value of its patent, and set prices for Cipro in private transactions, while still meeting the demands of the government during a public health crisis.
Such considerations did not shake the skepticism of some U.S. officials about Bayer's ability to produce Cipro. This feeling was echoed by at least some Canadian officials. In Canada, the campaign against Bayer's Cipro patent rights took a radical turn when Health Canada, the Canadian public health agency, placed an order for generic supplies of Cipro with another company.
What prompted Canada's response? According to Neil Belmore, a partner in the Toronto law firm Gowling, LaFleur & Henderson, the real issue in Canada was less one of a public-policy change than one of a lower-level Health Canada functionary who jumped the gun in placing an order. Belmore represents Bayer AG's Canadian subsidiary and attended an October negotiating session with officials of Health Canada in the agency's Ottawa offices. In the course of discussions it became clear that the Health Canada official who ordered the generic Cipro had departed from longstanding Canadian practice. Canadian law regarding compulsory licensing requires, among other things, prior approval of the ministry of industry's patent commissioner. No such prior approval had been sought, no official emergency had been declared, and the record of communications between Health Canada and Bayer was sufficiently muddled that the agency quickly backed off its order.
In fact, by the end of the negotiating session, the agency had agreed to publish a joint press release with Bayer, acknowledging the validity of the company's Canadian patent (due to expire in 2004). The press release also reaffirmed that Bayer would be Canada's sole supplier of emergency Cipro and would soon provide 900,000 tablets for that country's emergency stockpile. Why, if the government backed down so fast, had it ordered generic Cipro in the first place? Nobody knows for sure, says Belmore, since no senior official will take responsibility for the decision. "I can only speculate as to what internal pressures there were within the government" that might have led to the order, Belmore says. "It was an extremely fluid situation."
The same week Canada announced its resolution, over in the U.S. Thompson proclaimed a negotiating victory. The U.S. would buy Cipro from Bayer at just under $1 per dose, or close to half of the previous standard-to-the-government price. Bayer presented itself as equally upbeat. "We had a professional and satisfactory meeting today with HHS Secretary Thompson and his staff," said Bayer Corp. president Helge Wehmeier just before Thompson's announcement. "Within 10 minutes we came to a handshake agreement," Wehmeier now says.
"It took some time for contracts to be worked out," he adds. "It took 24 hours, and that may sound like a long time, but as [HHS] smilingly told us, it was the fastest time in living memory that they actually drew up a contract." Bayer Corp. also announced that it was tripling its production of Cipro tablets, and that it would ship 200 million tablets over the next three months, with 100 million of those tablets to be purchased outright by the U.S. government at the new negotiated price, and as many as 300 million total set to be purchased by the government.
Did the same factors underlie the apparent turnabouts in both Canada and the U.S.? Perhaps. Bayer AG's assurances that it could meet increased demand for its anthrax drug surely played a role. "We can fully cover the demand for Cipro tablets as defined by the Canadian and the U.S. governments," said Bayer AG chief executive Manfred Schneider on October 23. Schneider acknowledged that even with the discount, the transaction would be profitable for Bayer, whose per-unit manufacturing cost of Cipro is estimated by the Amsterdam-based Health Action International, a drug-policy watchdog group, to be under 5 cents U.S. (Schneider makes a point of adding that Bayer's drug division will still end the year in the red.)
That the drug division is still limping along in spite of what could have been a much larger Cipro windfall is ironic, since the U.S. and Canadian governmental policy has been to use the patent system to create the very possibility of such a windfall -- that is, to make profits that subsidize long-term research and development of new drugs by the pharmaceutical companies. So much for policy, though -- when the anthrax panic gripped Washington and Ottawa, the result was that in both countries Bayer had to give up a huge amount of profit. Put bluntly, Bayer was told -- directly and indirectly -- to cut the government price and get some profit or keep it at its pre�September 11 price and risk losing what are likely to be the two most profitable years of the patent.
Another calming factor: We now know that Cipro isn't the only anthrax remedy out there. Amoxycillin and doxycycline are now known to be equally effective, and some public officials have gone so far as to say that just about every antibiotic currently known will work. But perhaps the primary reason for the governments' sudden turn was the prospect of an important upcoming WTO conference, scheduled for mid-November in Doha, Qatar. On the top of the agenda was the question of abiding by pharmaceutical patents. Western nations planned to argue for upholding their pharmaceutical industries' patents under TRIPS. African nations planned on arguing their right to produce or purchase cheaper generic drugs in response to the AIDS crisis in Africa.
The "Declaration on the TRIPS Agreement and Public Health" that emerged from the Doha meeting had one foot squarely on each side of the dispute. Member nations were reminded that TRIPS permits nations to engage in compulsory licensing of drug patents during public health emergencies. Developing nations were also assured that developed nations would provide them with the technology necessary to take advantage of TRIPS's compulsory-licensing provisions -- such as when a developing nation needs to build a pharmaceutical factory to manufacture its own generic AIDS drugs.
In light of the WTO negotiations, the U.S. might want to contract with Bayer, which makes One-A-Day vitamins, for a new product: irony supplements. Why?
Almost every aspect of the anthrax panic in the United States and in Canada was overblown. Despite the sheer viciousness of the anthrax-letter attacks, the actual impact on public health was and is small. In early December, fewer than 20 people have actually contracted the disease, and only a handful have died. By contrast, according to CDC statistics and other sources, there are likely to be 20,000 or more influenza-related fatalities in the U.S. in any given flu season.
One shouldn't diminish the impact of October's anthrax attacks. They were the first bioterror incidents of their kind in the U.S. They were immensely public and yet they remain mysterious. More than anything, those factors explain the speed with which policy makers put compulsory licensing on the table in their negotiations with Bayer. Whether the close-to-home aspect of the anthrax attacks will make the U.S. more sympathetic to the arguments of African nations -- who actually do face a large-scale public health crisis -- remains to be seen.
Critics of the pharmaceutical industry such as the Consumer Project on Technology's Love and Sen. Schumer argue that drug companies should not be allowed to profit unduly from a public health crisis, if and when one emerges. But PhRMA's Grayson insists that declaring war on drug company profits is not the answer. If a bioterror epidemic does occur -- an outbreak of "weaponized" smallpox infections is everyone's worst-case scenario -- Grayson says the only way enough smallpox vaccine will be produced is if the government enlists the help of industry. According to Grayson, "They won't be able to make enough vaccine without having a lot of industry support."
Of course, the brand-name drug industry is already showing its support for the government's anti-terrorism efforts. Representatives of pharmaceutical companies have promised to provide doxycyline and amoxycillin, and perhaps other drugs, to the national stockpile free of charge, provided the FDA quickly approves the use of these drugs as anti-anthrax therapies. Industry lobbyists are quick to describe this effort as public-spirited, but it's also good public relations. If the brand-name drug companies build up enough good will in their response to this public health issue, they may be less fearful that their patents will be at stake when the next big disease scare happens.]]>
The Supreme Court Shot Itself in the Foot While Shooting Down Al Gore
By Mike Godwin
For any constitutionalist, the proper reaction to the U.S. Supreme Court's majority opinion in Bush v. Gore is dismay. In dispensing with the Florida high court's efforts to resolve a confusing election-code tangle, derailing the election-contest process in Florida, and sidestepping the constitutionally established mechanisms for deciding disputed elections, the U.S. Supreme Court has done more than exceed the bounds of limited judicial power -- it also confirmed the most cynical view of how the nation's top court operates.
At this point, if you suspect that I'm a Gore supporter, you're right. But before you dismiss my complaints as Democratic whining, let me explain that I haven't lost a moment's sleep over the fact that the other guy won. And it bothers me not a whit that the candidate who lost in the popular vote count won in the Electoral College. What's more, I don't even blame Bush or his team for what the Supreme Court did wrong -- I'd be first in line to defend the right and prerogative of both the Gore and Bush teams to take their election disputes to state or federal courts.
In order to get a handle on what the Supreme Court did wrong in Bush v. Gore, it helps to look at the Florida Supreme Court's decision in Gore v. Harris -- the 4-3 decision ordering a statewide manual recount of the "undervote" ballots in all counties in which those ballots had not already been manually tabulated. What you see in the Florida high court's opinions in Gore v. Harris -- in both the majority opinion and in the dissents -- are jurists laboring under excruciating constraints to get the right legal answers to a complex legal problem.
The truth about the Florida Supreme Court justices' handling of Gore v. Harris runs counter to a couple of myths purveyed by partisans and pundits about that high court, whose justices were appointed by Democratic governors. But the partisans and pundits are off-base. To underscore where the U.S. Supreme Court went wrong in Bush v. Gore, let's clear away the prevailing myths about the supposedly partisan Florida Supreme Court and give its justices credit for what they, unlike their federal counterparts, did right.
Myth One: The partisan, "Democrat-dominated" Florida Supreme Court screwed up its own state law in its eagerness to give the election to Al Gore, so the U.S. Supreme Court had to step in to correct the problem.
In reality, the Florida legislature had presented the courts with a crazy quilt of ambiguous and/or self-contradictory election laws. Additionally, the Florida Supreme Court was faced with a decision in which a trial court judge (in the word of the majority opinion) "did not make any findings as to the factual allegations made in the complaint and did not reference any of the testimony adduced in the two-day evidentiary hearing, other than to summarily state that the plaintiffs failed to meet their burden of proof."
Apart from seeming to dispense with his role as fact-finder, Judge N. Sanders Sauls also seemed to conflate the "protest" and "contest" phases of disputing an election in Florida (and the differing burdens of proof required in each phase). When a trial court judge reaches factual and legal conclusions in a summary, arbitrary, or legally questionable way, he creates the kind of issues that state appellate courts were created to sort out. And a fair-minded reading of the Florida Supreme Court's decision shows it struggling mightily to do so fairly and evenhandedly. Consider: Of the five arguments made by Gore's team, the Florida Supreme Court's four-justice majority accepted only three. Ruling against Gore on the other two arguments ensured that some additional Bush votes would be included in the final count, and that the additional 3,300 votes from Palm Beach County, most of which were thought to be for Gore, would not be counted. Also, three of the court's seven Democrat-appointed justices would have ruled against Gore altogether.
If the Florida Supremes were really the judicial-activist, partisan-Democrat meddlers its GOP critics say they were, they would have come up with some chad-centric standard as to how to interpret ballots that vote-counting machines rejected. Unfortunately for Al Gore, it was the refusal of the Florida Supreme Court to legislate a new, precise, statewide standard for interpreting ballots -- a refusal to be a judicially active, changing-the-rules-in-the-middle-of-the-game kind of court -- that led the U.S. Supreme Court to decide that Florida's election-code provisions violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
Myth Two: The Florida Supreme Court usurped the prerogative of the Florida legislature to decide how its state's electors are chosen, in violation of both state and federal law.
In fact, the Florida Supreme Court was doing just what it was supposed to do, consistent with Article II of the U.S. Constitution, with the federal elector-selection statute, and with state election law. It's true that Article II (later modified by the 12th Amendment) gives to state legislatures the power to pick a slate of electors for the Electoral College. But that doesn't exclude the state courts from playing any role. Federal lawmakers have always known that state judges might have to do so. Title 3, Sec. 5, of the U.S. Code, for example, contemplates that disputes arising from state elector-election contests may be decided by a state's judiciary, provided that the law under which that contest is decided was in place before Election Day. As it happens, Section 102.168 of the Florida Statutes -- in place before Nov. 7 -- allows for Florida elections, other than those for the state's house and senate, to be contested in Florida courts.
The same Florida election statute authorizes a judge to "fashion such orders as he...deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under the circumstances." In other words, critics of the Florida Supreme Court's broad recount are giving no weight to the fact that Florida election law ex-pressly allows the Florida judiciary to do all sorts of things in handling election disputes. Anyone looking for a source of the Florida Supremes' authority to order a statewide manual recount of "undervotes" need look no further.
One of the rules that arguably governs how Florida courts must deal with contradictory directives of the Florida legislature is that a court must interpret the state election code whenever possible in ways that don't lead to absurd or meaningless results. For example, the courts should reject rigid, formalistic reading of ambiguous or contradictory provisions if such a reading doesn't serve the legislative purpose of a statute, or if it actively undercuts it. It's this sort of reasoning that led the Florida Supremes to conclude that the resolution of a contest requires only the statewide manual counting of contested "undervotes" rather than of all the votes (as the Bush team argued). What's the point of wasting time with uncontested ballots when the dispute is over a much smaller number of contested ones?
Maybe you don't buy that conclusion, but a conclusion that favors one political candidate over another is not in itself proof of partisanship. When you read the Florida Supreme Court's majority opinion, you see an immense effort to adhere to what the court believes the Florida legislature has defined its role in election-law questions to be. "This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes," the Florida majority writes. Both the majority decision and the dissenters' opinions in Gore v. Harris, even though they reach differing conclusions, are reasoning in ways consistent with standard jurisprudential principles. As important, they are laboring to adhere both to their own judiciary's general body of precedent and to the specific legal and factual constraints of the case before them. I would not have been greatly troubled if the Florida Supremes had gone 4-3 against a statewide, court-ordered manual recount. That's because a constitutional theorist perusing the majority's and the dissenters' opinions in Gore v. Harris, can see a principled jurisprudential path to either result.
The picture of the Florida justices' reasoning processes we get from both the majority and the dissents casts the U.S. Supreme Court's majority in Bush v. Gore in a highly unflattering light. Unlike the Florida justices in Gore v. Harris, the majority in Bush v. Gore seems to have acted as partisans, exceeding the well-understood limitations on federal judicial power. The U.S. Supreme Court majority showed only nominal reluctance to make new law (by finding that the 14th Amendment's Equal Protection clause applies to vote-counting standards) and to assert control over the outcome of a disputed election. Unlike the Florida courts, the federal courts have no express role in disputed elections, and in fact both the Constitution and federal law give Congress, not the federal courts, the fundamental authority to resolve disputes involving presidential elections. What's more, the U.S. Supreme Court stepped over the lines that supposedly constrain federal court authority in the service of plainly shallow and inconsistent reasoning.
The U.S. Supreme Court has no special grant of authority to deal with election issues -- not even those arising in federal elections -- absent some larger federal statutory or constitutional interest. At bottom, the U.S. Supreme Court is one of defined and limited power, as spelled out in Article III of the U.S. Constitution. You can tell how eager the majority was to involve itself in Bush v. Gore by how much effort the justices in the majority gave to finding a basis for their jurisdiction, and by how shallow and problematic the arguments for such jurisdiction turned out to be.
Ultimately, the attempt to find a basis in Title 3 of the U.S. Code, which sets up a statutory framework for Congress' handling and interpretation of the states' slates of electors, was a washout. Only three justices were willing to stomach the transmuting of these federal laws, which were designed to mandate and limit Congress' conduct, into a limitation on state courts. Still, it's disconcerting that these three justices, heretofore identified with both the states' rights theory of federalism and with a focus on the plain text of the statutes they must interpret, were willing to abandon those theories in service of a highly creative "interpretation" of a federal statute -- one that, had it gotten two more votes, would have amounted to a bald federal pre-emption of the states' authority to control their own process of selecting electors.
The equal protection theory that ultimately led the U.S. Supreme Court to effectively decide the election in Bush's favor is not in principle so jurisprudentially perverse as the Title 3 theory, and ultimately some elements of the equal protection theory won the support of seven of nine justices. Here the perversity isn't inherent in the theory itself but in what five justices were willing to do in the name of the 14th Amendment's Equal Protection clause.
The majority's equal protection argument begins with the well-established principle that the 14th Amendment's Equal Protection clause prohibits state governments from treating some citizens worse than others when that different treatment is based either on their identity and background or violates "fundamental fairness." Voting is a basic right, so the fact that some Florida counties use different standards than other Florida counties when participating in a statewide manual recount of "undervotes" at least raises the possibility that some citizens' rights under the Equal Protection clause have been violated. Similar arguments may be grounded in the Florida Supreme Court's focus on undervotes, which might be said to be unfair to those whose ballots were rejected as "overvotes" (with more than one presidential vote apparently marked on the ballot), or in the fact that all ballots, rather than just the undervotes, were recounted in some but not all counties.
Who can argue with the general principle that no person's vote should count more or less than any other's? But the devil's in the details, and both the factual situation in Florida and the remedy imposed by the U.S. Supreme Court raise doubts about how much the five justices who voted to stay and later to bar the manual recount really cared about the equal protection or "fundamental fairness" issues.
For one thing, it's unclear that the differences in ballot-counting standards among Florida counties add up to a constitutional violation of such magnitude that the U.S. Supreme Court needed to step in. Whatever rule might be used (counting dimpled chads, say, or refusing to count them), the rule itself won't inherently favor one candidate over another and thus won't favor one candidate's voters over the others'.
For another, different counties in Florida use different kinds of voting machines and ballot-counting machines, with the now well-documented result that some systems reject more legal ballots than others do. The Supreme Court's order blocking manual recounts ensured that votes in one county are more likely to count than votes in another county.
Compounding this latter problem is the fact that ethnic or racial minorities may be more concentrated in counties that use the less-reliable voting-machine technologies. Thus, blocking manual recounts may have had a disproportionate effect on certain voting minorities. This isn't the result a court is normally looking for when it invokes the Equal Protection clause and claims to be protecting fundamental rights.
As to the purported neglect of "overvotes," the dissenters rightly pointed out that no one had presented evidence of an overvote problem. In other words, the majority was so eager to find an equal protection violation that they assumed facts not in evidence.
The majority was aware of these details, which strongly suggests that these five justices' invocation of the Equal Protection clause was opportunistic and maybe even hypocritical. In effect, the Supreme Court was saying "We had to refuse to count your (possibly incorrectly rejected) votes in order to vindicate your right to have your votes counted fairly."
Which brings us to the question of what vital, constitutionally significant interests were being served by the U.S. Supreme Court's decision to block the Florida Supreme Court's statewide manual recount of undervotes, with the result that some votes would never be counted in time to affect this election? The best the justices in the majority can offer is this, in Scalia's concurrence to the initial stay of the recounts: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." Earth to Scalia: If improperly conducted recounts risk generating such a cloud, a court-mandated halt of the recounts is not exactly clear-skied if legitimacy is your concern.
Another notion the five justices advanced was that the ticking of the Electoral College deadline clocks meant that the Supreme Court needed to impose finality on the election dispute. But it's hard to see how this need for finality, even if true, required that the U.S. Supreme Court prevent the Florida Supreme Court from even trying to craft a remedy consistent with the finding of an equal protection violation. Suppose Florida's high court had been unable to resolve the issue by any deadline -- so what? As Justice Breyer pointed out in his dissent, "The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a road map of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S.C. 5 (providing that, where a 'State shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of...electors...by judicial or other methods,' the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court."
If the blocking of the recount, which resulted in the effective erasure of many citizens' votes, was not enough to cast doubt on the Supreme Court majority's commitment to equal protection and fundamental fairness, the majority's attempt to limit the impact of its newly discovered equal protection issue to this particular case would be. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," writes the majority in its unsigned opinion. In other words, the majority seems to be saying, we believe Florida's election code issues add up to an equal protection problem only insofar as they raise the possibility that George Bush might not win Florida. But don't expect us to be bound by this decision in future cases.
We'll get the chance to see how well the majority's commitment to this equal protection issue holds up. Despite the justices' attempt to limit the effect of this new doctrine, it will be an invitation to future candidates to mount federal equal protection challenges to every state-based resolution of an election dispute. Finality, the thing the majority seemed to value more highly even than citizens' rights to have their votes counted, may be yet another casualty of Bush v. Gore, as state election-dispute cases increasingly lead to simultaneous or subsequent litigation in the federal courts.
But the biggest casualty of all is the credibility of the Supreme Court as a principled arbiter of the Constitution and of federal law. It's a shame that the Court did not meditate long enough on one of the key observations from the Florida Supreme Court's Chief Justice Wells, who warned in his dissent in Gore v. Harris of the hazards of a court's being too willing to intervene. "We run a great risk that every election will result in judicial testing," wrote Wells. "Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters -- not by judges."
Whatever one may think of the Florida high court's handling of the election cases, there's no disputing that when it comes to lack of judicial restraint, it's the U.S. Supreme Court that takes the prize.
By Richard Epstein
What is the moral of the Great Florida Recount? Bush supporters, whether devoted or tepid (I fall in the latter category), may be personally relieved that the outcome lined up with their votes. But partisan politics aside, we can learn larger lessons from this classic judicial brawl. One lesson is that tragedies and near tragedies develop one small step at a time. Each side is rightly and mightily distressed with the prior machinations of the other. Each is therefore emboldened to take the next small step. Each step prompts the next until we come to the brink of a constitutional crisis.
That's just what happened starting November 7, 2000. Most pundits thought Al Gore's prompt request for a hand recount in friendly precincts would prolong the election by perhaps another week. They were the same type of folks who in August 1914 thought that British troops would return home from France by Christmas. What the election optimists missed is that both sides of this close conflict deeply believed that they had right on their side.
That is the second lesson of Florida's long count. The prolonged grudge match between George W. Bush and Al Gore offers ample confirmation of the endurance of primal instincts in human affairs. In our over-intellectualized analysis of politics, we place too much emphasis on the word "political" and too little on the word "animal" in the phrase "political animal." Alas, nature's first maxim of survival is to avoid a fair fight when both sides run the risk of serious injury. Nature therefore codes all animals to hold their ground when right, and to slink away when wrong. That game plan works pretty well except when each side to a dispute thinks in moral terms and believes it is right. Then a battle royal ensues.
The mutual sense of being wronged intensified the conflict, as did the fact that each side needed to make only the kinds of arguments most congruent with its legal philosophy. Democrats take an expansive view of language and harbor a yen for social justice, while Republicans gravitate toward plain-meaning interpretations and the rigorous application of formal rules. Truth is, this contest would have been over sooner if the litigating position of each side had required it to embrace the legal philosophy congenial to the other. But instead, the striking correlation of their legal strategies to their deepest psychological predispositions goaded both sides to fight harder.
The initial Gore response was an irritated expression of disbelief at the large but confused "butterfly ballot" vote for Pat Buchanan in Palm Beach County. But since Democratic operatives had prepared this ballot (to make the print easier for seniors to read), the Gore people could not lash out at Republican misdeeds, nor rectify the error in court. They did, however, think that the Republicans owed them one on the recount, and thus were emboldened to pressure canvassing board officials in Broward and Miami-Dade counties to run a hand recount that paid ever-greater homage to dimpled chads.
Republicans reciprocated in kind because they had no remorse for having won Florida fair and square, notwithstanding Democratic blunders. They showed their true colors when Florida's Secretary of State Katherine Harris eagerly exercised her discretion to deny the contested counties a waiver of the one-week deadline established for recounts. After all, the initial review of the ballots in Broward and Palm Beach counties resulted in only about 2 percent of the "undervote" being converted into votes. Thereafter, the consistently more lax standards in Broward County converted dimpled chads into 567 net Gore votes. Palm Beach County followed a more erratic but conservative course, which in the end produced, depending on who is believed, between 176 and 215 net Gore votes.
Clearly the choice of standards mattered. To forestall such erratic behavior, what Harris should have done was first to allow more time to complete a recount, but then to insist that manual recounts did not change the standard for a valid vote, which at least required that light go through the hole. Instead she neglected to give any principled defense of her position, which made her vulnerable to attack. In fact, her legal argu-ments were strong: Florida election law requires an "error in tabulation" to trigger the hand recount, and the machines had worked just fine.
The Florida Supreme Court, however, was now poised to do a bit of high-stepping of its own. The state election law was poorly drafted. Yet it is best read to say that the canvassing boards had to present tallies to the secretary in a week, though leaving her with the power to extend the deadline. The Florida Supreme Court exploited the textual ambiguity to come up with a solution that was inconsistent with any plausible reading of the statute. In a good day's work, that court read "error in tabulation" to allow Gore to challenge the traditional standard for a valid vote. It brushed over the obvious statutory concern with finality in election disputes; it authorized highly subjective hand counts without any safeguards against favoritism and bias; and out of whole cloth it created its own new November 26, 2000, deadline for finishing the hand count.
The Republican faithful on and off the U.S. Supreme Court noted the obvious distortions of the statutory scheme. But they were faced with the same dilemma that had just sapped the legitimacy of the Florida Supreme Court: The higher a case goes in the judicial system, the narrower the grounds for review, and the stronger the arguments needed to sustain a reversal. The Florida Supreme Court did not meet that burden when it overturned the secretary of state, so the conservative five on the U.S. Supreme Court faced the next round of the ongoing realpolitik dilemma: Play the game straight at your level and lose to the machinations of the judges below, or stretch the law a bit at your level, if necessary, so as to undo their error with some judicial innovations of your own. The case had not gone far enough to stop all litigation in Florida cold, so a grumpy but unanimous U.S. Supreme Court asked for the Florida Supreme Court to explain itself -- only to set the stage for a bigger fight next time round. Nine troubled justices retained peace without honor, through delay.
Back in Florida, business continued at a brisk pace. The canvassing boards in the key Florida counties all responded differently to the November 26, 2000, deadline. Broward finished its count and came up with a trove of over 500 new Gore votes. Miami-Dade called off its count, and Palm Beach County came within two hours of finishing its own recount. Harris, ever jealous of the prerogatives of her office, rejected the Palm Beach request for delay, and certified the Bush victory. That action promptly moved the case from its protest phase to its contest phase.
This move is larger in legal than popular estimation. A protest leads to more administrative work, but a contest requires a full-dress trial, complete with fact witnesses and cross-examination. The contest trial was held before Judge N. Sanders Sauls. who, consistent with the first Florida Supreme Court decision, found that the canvassing boards had not abused their discretion in the extended recount phase. He also found, more debatedly perhaps, against the Gore team on the grounds that they failed to meet the probabilistic burden of proof required for a contest.
Normally, a Supreme Court on appellate review is hard pressed to overturn a trial judge who has found in favor of an administrative official. But by a 4-to-3 vote, the Florida top court confounded most people's expectations by deciding, first, that every vote must count when the intention is clear, and second, that a recount of the undercounted votes throughout the state must be conducted under judicial supervision. The new dose of uncertainty could only benefit Al Gore.
Once again, the majority of the Florida Supreme Court twisted Florida law by ordering what was in essence a judicial continuation of an administrative recount. But at the contest phase, simply having election officials count ballots doesn't cut it. A trial was required to allow both teams to call local officials to the stand as fact witnesses, subject to cross-examination. That trial also should have allowed the Bush forces to challenge the legality of the undervote recount in Broward, Miami-Dade, and Palm Beach, but the four-member majority simply added those Gore votes as-is to the final tally, without taking any evidence at all from the Bush team. In essence the Florida Supreme Court appointed Judge Terry Lewis as de facto secretary of state to complete a recount, but made no provision for it to be challenged thereafter in any full-fledged contest.
So the case went up again to the U.S. Supreme Court. Only now the judicial dilemma was still more acute: If a bare majority of the Florida Supreme Court could have succeeded with its maneuvers, then Al Gore might well have been handed the presidency. In response, the five-member majority of the U.S. Supreme Court played a tough game of tit-for-tat. They stayed the Florida recount under a broad definition of "irreparable injury" to avoid, as Justice Scalia said, casting a "cloud" over the entire election. Justice delayed was, in a sense, justice achieved. The stage was set for a full-scale reargument, where once again the conservative majority had to show not just that the Florida Supreme Court was wrong, but so terribly wrong as to offend some constitutional guarantee.
The fits-and-starts of the Florida recount and contest procedure presented two lines of attack. The five conservative justices (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas) invoked what can only be described as the broadest equal protection test known to man, for which they have been skewered by an enraged liberal press. Doctrinally, these critics have a real point. Normally, it is critical to know just what class of persons is disadvantaged by unequal treatment. That question can be answered with tolerable certainty in the "one-man/one-vote" cases decided in the 1960s. In those cases, residents of urban counties had a tiny say in state governance compared to their country cousins. But in the Gore/Bush bash, it is odd to lump all undercounted voters, whoever they might be, into one protected class, especially since any Bush undervoters were quite happy to see their votes uncounted so long as the Gore undervoters were equally ignored.
Worse still, this weird equal protection theory should not have ended the case. Rather, it cried out for the remand sought by Justices Souter and Breyer so that the Florida Supreme Court could establish a uniform standard of its choosing, and thus throw the election to Gore by declaring all dimples equal and valid. So the majority of the U.S. Supreme Court deftly cut off that possibility by noting that, under Florida law as interpreted by no less than the Florida Supreme Court, the overriding intention of the Florida legislature was to choose a slate of electors before the December 12, 2000, date (after which the slate could be challenged in Congress). The real decision was 5 to 4, not 7 to 2 as some conservatives have claimed.
The conservative core (Rehnquist, Scalia, and Thomas) went one step further by invoking Article II of the Constitution, which governs executive power. That article provides that the electors in each state shall be chosen "in such Manner as the Legislature thereof may direct." Florida's law calls for a popular vote under a complex election code that Florida courts interpret. This novel constitutional claim does not necessarily turn on bad faith conduct by the four Florida judges, but rather it becomes necessary to show at least that their decision deviated so far from the statute as to constitute new law of judicial origin. Take this line, as the conservative core did,and the judicial process ends with Katherine Harris' certification of George Bush.
Can that extreme claim be defended? In a low-stakes contest no one would bother to cast aspersions on the majority of the Florida Supreme Court. In this high-stakes case, aspersion looks well-grounded, if it matters, given how the Florida Supreme Court took over and continued the recount started by the canvassing boards. The Florida court created a new scheme for judging elections that can be referred back to the original statute solely by fanciful interpretative footwork. But for the U.S. Supreme Court majority, the operative principle may well have been only this: One bad turn deserved another. And thus the 5-4 majority ran out the electoral clock by overriding a 4-3 Florida majority.
For the public, this struggle was no doubt like a football game that went down to the wire but did not make it to overtime. The spectacle is over, and we can all move on. But academics and politicians have longer memories that lead to endless postmortems. Hyperbolic politicians will seize the platform to denounce the outcome. Key black leaders and liberal commentators have already mindlessly denounced Bush v. Gore as another Dred Scott decision, without acknowledging just how ugly a situation Dred Scott created.
This overblown rhetoric will die down with the next political flap. Still, liberal legal academics will linger on to rub conservative faces in the mire of their newfound activism. But they will have a practical objective, which is to give the next open U.S. Supreme Court seat to a political moderate. In the courts, ambitious lawyers will find constitutional meaning in administrative flip-flops until the Supreme Court states that this equal protection dog barked only once; constitutional litigation will quickly return to normal.
What remains is the uneasy aftertasteof this big decision. But ultimately that will prove more congenial to sober minds than would the alternative of an indefinite and prolonged struggle lasting into the next year. Remember that when two animals fight to the death, sometimes both die of their wounds. Here at least the Republic marches on, chastened, weary, and wiser. It was far from pretty. But it could have turned out far uglier than it did.]]>
It was September 28, 1999. Some officials from the Clinton administration were briefing the Congressional Internet Caucus, and Rep. Curt Weldon (R-Penn.) was getting visibly angry.
The officials were outlining the White House's new policy on encryption, the practice of coding and decoding electronic messages using computer programs. Since the Bush years, encryption software has been classified as a munition, meaning that companies need a special export license to ship products overseas, just as if they were shipping guns or warheads. Encryption has long been a contentious issue, pitting privacy advocates against the national security apparatus; now, with e-commerce expanding and requiring stronger protections against intruders, even more parties have been weighing in on the issue. The administration's new approach seemed to make it much easier to export encryption products, and Weldon, a long-time supporter of strict encryption controls, couldn't understand why.
How could you be implementing this policy? he asked the panel. On countless occasions, this administration has sent high-powered people to the Hill, including Attorney General Janet Reno and FBI Director Louis Freeh, warning us that if encryption is freely exported, it will create serious domestic and international security problems and hamstring our law enforcement and intelligence operations. And now you're telling us you've changed your minds?
Did they change their minds? At the same briefing, the White House reaffirmed its support for the Cyberspace Electronic Security Act (CESA), a bill rooted in the government's traditional distrust of private encryption. Along with some less controversial provisions, the bill said the government need not disclose, in the course of a criminal proceeding, how it recovered the decrypted information that it's using against the defendant. The theory is that if the government reveals its decryption secrets--which may involve classified techniques, industry trade secrets, or software flaws that government researchers have discovered--criminals will be forewarned and will be able to thwart decryption in future investigations. But civil libertarians point out that this will make it harder for defendants to authenticate the state's evidence. It may even pose constitutional problems: How can you confront your accuser in court if you don't know the basis of his charges?
The administration's crypto schizophrenia didn't end in September. Earlier this year, the White House announced a new set of crypto-export rules that, while complex enough to require a lawyer to parse, seem to take the lid off the export of encryption almost entirely. Most encryption tools will be cleared for export after a one-time review by the Commerce Department. There will still be restrictions on products that aren't widely available in domestic retail outlets, exports to "terrorist" pariah states will still be banned, and there will still be some restrictions on programs' source codes. But the new policy is unquestionably a significant deregulation.
And yet: At the same time, the Department of Justice is vigorously litigating for export restrictions in Bernstein v. U.S., a case involving a college professor who claims the First Amendment protects his right to distribute encryption-related source code. Between that and CESA, observers are beginning to wonder whether the United States has a consistent encryption policy at all.
For most of the post-World War II era, the government didn't need a general policy on encryption. Because of the massive computing power necessary to generate cryptographic codes, such activity was the province of intelligence agencies and almost no one else. Over the past couple of decades or so, as the personal computer revolution placed more (and cheaper) processing power within reach of virtually anyone, that changed. In response to a world of decentralized computing, U.S. law enforcement responded with a single, panicky policy: Stop the spread of cryptography at all costs.
The new stance was driven by some pioneering work in the late 1970s by American cryptographers--work that, for once, was not performed by people in the pay of the intelligence agencies, and therefore was not "born classified." This academic revolution--the development of a public science of cryptography and a resulting colloquy about it--was accompanied by a similar, equally dramatic revolution on the microcomputer front.
The result: Ordinary people with desktop PCs could encrypt their messages or data to a degree that only governments could have achieved not long before. For intelligence and police agencies, this ushered in a new era, one in which merely intercepting a terrorist's or criminal's (or dissident's) communications was no guarantee that the government could figure out what the communicator was saying. On top of that, telephone companies were relying more and more on computers to run their networks and phone services, raising the specter of a world in which every call might be encrypted. Effective wiretaps might become a thing of the past.
The Bush administration responded to these developments in two ways. First, there was the "Digital Telephony" initiative, which required phone companies to structure their networks and services so as to facilitate wiretapping. It eventually passed into law in 1994 as the Communications Assistance to Law Enforcement Act. Second, there was an effort to regulate the use and sale of encryption tools, domestically and abroad. When Bill Clinton took over the White House in 1993, he adopted Bush's strategy without any significant changes.
While the digital telephony guidelines went ahead with nary a hitch, the encryption initiative proved harder to implement. In spring 1993, the Clinton administration introduced the "Clipper Chip" program, in hopes that this would steer the growing market for computer security in the direction the feds wanted. The Clipper Chip was a hardware device developed under the supervision of the National Security Agency. Each chip had a "backdoor" key that would be held in escrow by a trusted government agency. Thus, while the device would let computer or telephone users encrypt their communications, it would also let the government recover the content of the coded messages.
The government hoped that by requiring all future federal purchases of phone and computer systems to be Clipper Chip-compliant (and enforcing the same standard for all outside government contractors), the private sector would have to follow suit. Instead, the chip ignited a firestorm of criticism from privacy activists, high-tech industries, and others. By 1996, the administration had abandoned the Clipper Chip as such, but it continued to lobby both at home and abroad for software-based "key escrow" encryption standards. Again, the goal was to make it easier for law enforcement and intelligence agencies to recover encrypted data when they believed they needed to. This was marginally successful outside the United States--33 countries, including Britain, Russia, Canada, France, and Germany, adopted the "Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies." But in the domestic software market, few accepted the push for key escrow standards (now relabeled "key recovery").
Civil libertarians didn't just argue against the Clipper Chip per se; they also complained that the United States was pushing privacy-undermining standards precisely in countries that lacked the United State's strong legal protections for privacy. Faced with both industry pressure and public criticism to kill the Clipper Chip, the administration scotched the plan and moved most export control authority from the Department of State to the Department of Commerce. However, most of the encryption controls themselves remained largely unchanged.
Pressure for liberalization continued to increase; even people within the administration were now pushing for change. Several factors were responsible, according to Dorothy Denning, a computer science professor at Georgetown who's been a strong defender of the government's wiretapping and cryptography policies throughout the 1990s. On the export front, Denning says, the administration had begun to recognize "the futility of trying to force the whole market into a Clipper kind of model." Meanwhile, as law enforcement "started dealing with [more encryption- related] cases, they were learning how to handle them." The police were still panicked by encryption, but they were also beginning to relax a little.
As a result, on the last day of 1998, the administration announced that it would further liberalize its export restrictions. The new rules flatly legalized the export of encryption products using 56-bit keys. (The strength of encryption products is generally taken to be a function of key length. The previous standard had been 40-bit keys.) It also allowed for the export of stronger encryption products in industry sectors with a special need for data security--the banking industry, the health and medicine sectors, certain online merchants, and foreign subsidiaries of U.S. companies.
Outside the administration, critics charged the government with not going far enough--it had talked a good game about liberalization, they argued, but had failed to deliver. Rep. Bob Goodlatte (R-Va.) began gathering support for the Security and Freedom through Encryption Act (SAFE), a bill that would remove restrictions on the export of encryption technology while imposing a greater criminal sanction on those who used encryption to commit crimes. When first introduced, it stalled. When Goodlatte reintroduced it, he had much greater success, garnering about 200 cosponsors, and passing the bill out of five separate committees before it was halted once again. In the current Congress, SAFE has even more support--it has once again passed through five committees (as well as several subcommittees), and has 258 representatives, more than half the House, cosponsoring it.
The government's export policy was faring no better in the courts. Dan Bernstein, a professor at the University of Illinois at Chicago, wanted to post the source code for an encryption-related algorithm on the World Wide Web, and had asked the government whether he would need a license. (Under present law, to publish something on the Web is effectively to export it.) The feds replied that his source code qualified as a munition, so he couldn't do it. In August 1997, a federal district court in San Francisco ruled in Bernstein's favor, finding that this restriction looked a great deal like prior restraint of publication, which is prohibited by the First Amendment. On appeal, the trial court's ruling was affirmed, albeit on slightly narrower grounds; and while the DOJ has continued to litigate the case, encryption-policy mavens inside the government know that the feds were not necessarily going to prevail. The courts will hear further arguments later this year.
Facing challenges in both Congress and the courts, the administration knew it had to take action if it was going to regain control of the issue. In the words of Jerry Berman, director of the pro-privacy Center for Democracy and Technology, "The government has realized that delay is no longer a policy."
So by late 1999, America's once-mono-lithic encryption policy--stop the spread at all costs!--had been reduced to fragmented and perhaps self-contradictory rubble. Perhaps the biggest reason for the Clinton administration's latest liberalization is the heat they've been feeling from the American computer industry. As Vice President Al Gore has hit the campaign trail in earnest, he's been working to strengthen his support among the leaders of high-tech industries. To the extent that such restrictions have prevented these businesses from developing domestic products with encryption features, software companies have been at a disadvantage in the global marketplace. They've made their dissatisfaction known.
What's more, as Georgetown's Denning has noted, the government has simply had more time to adjust to the spread of encryption tools, further easing its once-vivid panic. That point is seconded by Stewart Baker, former general counsel of the National Security Agency, who adds a twist: The original export- control regime has largely served its purpose of limiting the spread of encryption. Absent those controls, he argues, computer and software manufacturers would have almost certainly incorporated encryption tools into the operating system of every mass-market computer. That may still happen, he continues, but right now encryption is far from ubiquitous. This gives the intelligence community some breathing space to adapt.
And the police? Berman notes that "the FBI has been strangely silent," and policy watchers believe there is still serious debate within the administration about the wisdom of the new liberalization. CESA, apparently, is meant to mollify those in Congress and in the executive branch who remain concerned about encryption's alleged threat to law enforcement. The Department of Justice, of course, is still engaged in a full-court press in the Bernstein case.
So: Is there a consistent encryption policy framework now? To Baker, the current muddle, for all its inconsistencies, "is as coherent as government policy gets." Meanwhile, Berman is cautiously optimistic that we're seeing the beginning of the end of encryption controls. Congress seems prepared to pass SAFE, he notes, if the administration fails to fully liberalize the export of encryption products.
But, he warns, "one terrorist incident involving encryption could change the landscape."]]>
Most important new information technologies threaten--or at least seem to threaten--established interests, laws, and customs. In fact, the degree to which such technologies are likely to become useful and ubiquitous can often be measured by the amount of fear, anxiety, and disturbance they inspire. This is particularly true in the realm of intellectual property, especially copyright laws, which give authors and publishers the right to limit how certain information and material can be used.
Remember when cheap videocassette recorders first appeared en masse about a decade or two ago? Movie companies rushed to the courts to prevent the distribution of the machines and blank videotapes, claiming their copyrights would be infringed right and left--a concern that seemed to make a lot of sense at the time. Who, they fervently argued, would pay for a movie if they could get it for free?
The movie companies' nightmare never came to pass, but that hasn't stopped the movie execs from looking at the growth of the Internet with fear and trembling. That's because the Internet is perhaps best understood, technically speaking, as a global collection of copying machines that allows people to duplicate and broadcast all sorts of information with unprecedented ease. As the Internet becomes more and more important to our daily lives, it's easy to see why software makers, book publishers, and others who benefit from copyright protections are in a panic: People can now make an unlimited number of perfect copies of computer programs, books, and other materials and almost effortlessly distribute them around the planet. It's not surprising that an industry trade group like the Software Publishers Association launched copyright lawsuits against Internet service providers that hadn't actually facilitated or benefited from pirating copyrighted materials. The SPA hoped the cases, all ultimately settled at little cost to the defendants, would send a message to service providers everywhere and, more important, set Internet industry standards that would tilt the balance of legal duties in favor of copyright holders.
The tension between the almost frictionless information flow of
the Internet and the desire of copyright holders to control the use
and abuse of protected materials is exacerbated by our country's
longstanding debate over the policy rationale for copyright law.
The U.S. Constitution provides in Article I, Section 8 that
"Congress shall have Power
...to Promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." But when Congress initially exercised that power--the first Copyright Act was passed in 1790--it remained unsettled whether Congress's primary role in setting up an intellectual property framework was to protect authors or to serve the public. That question should have been finally resolved in 1834 when, in Wheaton v. Peters, the Supreme Court articulated the philosophy behind American copyright law that has persisted up to the present day. But copyright holders continually recast the law in terms of protection of their own property rights.
The Court in Wheaton decided that the purpose of the Copyright Act was not primarily to enrich authors and publishers but to "promote science and useful arts," as specified in Article I. This is the case that copyright scholars normally cite when they talk about the theoretical underpinnings of copyright in the United States, and implicit in its holdings is that the needs and concerns of the general public in an open society are paramount. Copyright law must be understood, therefore, as a means to an end (educating and enriching the public) and not as an end in itself (protecting the interests of copyright holders).
That said, it is no easy trick to apply such a principle to the real world--especially since everyone involved recognizes that one major way copyright laws benefit the general public is by giving copyright holders exclusive rights over their work for a specific period of time--currently the life of the author plus 50 years. (As this goes to press, Congress is debating adding 20 years to the term of copyright protection.) The assumption is that those rights provide strong incentives for people to create new and valuable works; weaken those protections and people have less incentive to write new stuff.
But the problems with traditional copyright multiply in cyberspace, and not simply because of the ease with which people can copy and distribute materials. In cyberspace the potential conflict between intellectual property rights and civil liberties becomes unavoidable because both economic and speech issues are rightly seen as questions about "information." So while it may be true that the Net, as Villanova University law professor Henry Perritt has commented, "can realize its potential only if it protects private property and makes it possible to offer something for sale or license," the Net's potential is more than simply economic--it's democratic, too. Its great potential to educate and enrich the public can be fulfilled only if the greatest number of voices are given an opportunity to speak and be heard. And, quite often, saying what needs to be said requires that speakers make unlicensed use of someone else's copyrighted work. This is why Congress provided for the limited right of anyone to make unlicensed "fair use" of others' copyrighted material (see section 107 of the Copyright Act). We're building new societies in cyberspace, and every new society must figure out what balances to strike between the economic rights of some individuals and the civil liberties of others.
As a copyright holder myself, I can sympathize with the people who are worried about the Internet's effect on intellectual property rights--as I said before, the Internet is, in a very real sense, a huge copying machine. Its very method of propagating content is copying "packets" of information from node to node across the globe. And this fact perpetually scares copyright holders, trademark holders, database companies, and companies with trade secrets. The information revolution can be a pretty frightening thing indeed when one has relied heavily on--and even invested in--one's ability to control the circulation of information.
It may well be that the potential economic threat to copyright holders requires some tinkering with our intellectual property framework. Certainly it would seem unfair if a competitor to West Publishing, a company whose whole revenue-generating enterprise centers on the recording and publication of court decisions, simply copied the fruits of West's labor and started up its own legal database services. But intellectual property holders have faced this kind of challenge before. What's more, it's often the case that the interests of copyright holders and others dovetail in mutually beneficial ways. Since VCRs have become a mainstay of American consumer electronics, the video market has generated huge financial rewards for the movie industry. Indeed, the video market now brings in more income for studios than theatrical releases.
VCRs teach another lesson when it comes to dealing with new technologies: The best guide to the way the law should work is to study the past and present, not to attempt to predict every possible future. As Justice Oliver Wendell Holmes said long ago, "The life of the law has not been logic; it has been experience." When a new media technology emerges, the best thing to do is to wait and see what problems actually emerge, not panic about what could happen. Once we understand the actual risks, we can legislate accordingly and with full regard to the competing interests at stake.
As that process gets under way--as the Internet becomes increasingly central to how we do business and how we live life--it's worth reexamining today's copyright statutory scheme, which is laid out in Title 17 of the United States Code. The last major revision of the Copyright Act took place in 1976, but the fundamental approach to copyright law in this country can be found in a passage from the legislative report on the Copyright Act of 1909: "In enacting a copyright law Congress must consider... two questions: First, how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly."
The reexamination of these two questions is an ongoing process, and the tensions behind these two sets of interests can lead to some fractious confrontations--ask the folks at C2NET, the Berkeley service provider that was sued for contributory copyright infringement claims in 1996 by the Software Publishers Association even though there was zero evidence that the company had even come close to infringement, contributory or otherwise. In the spirit of helping you speak freely on the Net while avoiding similar confrontations, my research assistant, Tess Koleczek, and I have distilled commonsense guidelines we call "A Good Citizen's Guide to Copyright on the Web (Or, How to Link Friendly and Influence People)," version 1.6. The philosophy behind these guidelines is not to tell you what you can get away with but to encourage you to treat copyright holders in the online world as friends and co-participants in this great social experiment we call the Internet rather than adversaries. The guide is designed to explain what we think it takes to make someone a good neighbor when dealing with other people's copyright interests in cyberspace.
You may already have a pretty good idea of the ways you can use the World Wide Web to benefit your business or enhance your personal enjoyment of the Internet. You may even already know something about how powerful and flexible the Web can be when it comes to capturing material off the Web and reshaping it for your own use. But when you're staring all that exciting potential in the face, you may find it easy to forget something very important: Just because new tools empower you to use the Web in creative new ways, it doesn't mean you should be using it in ways that hurt other people's rights and interests. And it especially doesn't mean you automatically have a legal right to do anything you want with the material you access.
Of course, we can't be your lawyers for you, so you shouldn't take what we're about to tell you as the legal advice that will help you out of your particular fix. But we can help you be aware of how to avoid some common pitfalls in copyright law by offering the following guidelines, which we've tried to translate into ordinary human-speak. We'd like it if you followed these rules, not only because they'll help you keep out of legal trouble, but also because it would help show the world that the Internet and Web-exploiting software can be used wisely and responsibly. We can't guarantee that these rules will keep all trouble from your doorstep, of course. But we're hoping that if we can start a general movement to treat copyrights with a little bit of extra niceness, the Web and the Net will be better places for us all. So peruse the following guidelines, and think about the ways you can be a "friendly linker."
1) Linking to other sites, even without express permission, is generally OK. But it is important to distinguish linking to a Web site from making a copy. Absent some explicit restriction on the part of the copyright holder, you can link to his or her page, and you have an implied license to make the copies that are made automatically when your browser or other software contacts the site. Making additional copies beyond that, however, is generally verboten, absent permission from the person who holds the relevant copyrights. (See below for some exceptions.)
If you do happen to receive a request from the copyright holder
of the page asking you to "unlink" from the site, it is generally
good "netiquette" to respect that request, whatever the reason for
it, and remove any link. But this needn't be a hard-
and-fast rule. For example, your link to a political opponent's page may be used to illustrate a particular criticism: If you are pro-choice, you might want to link to an anti-abortion page (or vice versa) in order to make your point. Such criticisms, even with the attendant links, and absent any defamatory or libelous remarks, are generally OK.
2) Don't try to pass off someone else's material as your own. It doesn't matter whether you're linking or just plain copying--copyright law is all about making sure the person who holds the copyright for a particular work has the primary control over it and gets the primary benefit from it.
3) When in doubt, ask permission. If you would like to use someone's material, the most logical step is to ask--but be sure that the person from whom you are obtaining permission is authorized to give it.
4) Don't just assume that reusing material is OK. It is rarely a bad idea to ask permission to use material in order to avoid any potential problems down the road, especially if the material you are copying to your hard drive, floppy disk, Web page, off-line publication, etc., is something that the copyright holder might not want you to use. There is a great amount of leeway in copyright law that allows for use of material without permission, provided you stay within the rules. Sometimes it is not necessary to ask for permission in using copyrighted material, but you might want to ask anyway. And in copyright law, it often does matter if you can show you tried to find the copyright holder.
5) Use of ideas or information that you may have learned from a copyrighted work is also generally OK. Copyright law doesn't protect ideas or information--it just protects the particular expression of ideas or information once they've been "fixed" in a tangible medium (like paper or a hard disk). So if you see the movie Love Story and you write your own story about Preppy finds Girl, Preppy loses Girl, Preppy really loses Girl, you probably haven't violated anyone's copyright. But the minute you start posting actual dialogue from the book to your Web site, you can be sure you'll be hearing from Erich Segal's (or his publisher's) lawyers.
6) The mere possession of material does not make you the copyright owner. Say a guy sent you e-mail out of the blue, and it's something you feel like publishing. The copyright to the material you are using may belong to the author or someone else who has acquired it. Use of the material may still require permission.
7) Look at the purpose and character of your intended use. If you are using the material for educational purposes, limited use of the material may be acceptable, even without permission. However, if the use of copyrighted material is for a commercial purpose or is intended to derive some economic benefit, you will likely have to gain permission from the copyright holder and comply with certain conditions for use.
8) Compare the proportion of the work you are using to the work as a whole. It is one thing to quote a few paragraphs of a 20-page essay. It is quite another matter to take 800 words of a 1,000-word newspaper story. The amount and substantiality of the work you can use without permission is not carved in stone (or even set out in the law books), so be aware of how much of the "meat" of the work you are taking. This is a gray area, but if you're embarrassed by how much of the work you're "re-purposing" for your own use, it's probably something you should ask the copyright holder about.
9) In general, try to make sure that your unlicensed use of any copyrighted work does not significantly affect the potential economic market of the original work. OK, you can break this rule--maybe--if you've got a copy of the latest equivalent of the Pentagon Papers and you think the world has a right to know. But in general copyright holders have an exclusive right to use their material for economic gain. That's the assumption you have to begin with. So unless they give you permission to use their work, usually done in the form of a license, the impact you have on their market by your use of the work could expose you to an infringement lawsuit. And who needs that? (It's true that sometimes a court will rule in your favor anyway, as when factors such as educational or journalistic uses are important enough to outweigh the economic impact on the copyright holder.)
10) Don't assume that your use of copyrighted material on your company's internal network--e.g., a Web page on your Intranet--is not an infringement or will not be seen outside the company. Intranet Web pages may be limited in circulation, but they're not exempt from the copyright laws. And don't circulate infringing material within your Intranet on the assumption you won't get caught.
Don't treat other people's copyright interests as if they were necessarily opposed to your interests. Presume a collegial relationship instead. Often the owner of a copyright will discover his work being used without permission and simply request that it be removed from the publication, Web site, etc. And since you're a nice guy or gal, you'll want to comply. But you can't count on every copyright holder to be so understanding. Don't risk a lawsuit for copyright infringement by assuming you will not get caught.
If you have real legal problems, you need to talk to your own lawyer, and cribbing from our (copyrighted!) guidelines here won't suffice. But our experience is that if you basically do your best to be a nice gal or guy when it comes to someone else's copyrights, you're less likely to have serious legal problems in the first place. And since part of using the Net is finding new ways to connect with people and to work cooperatively with them, it's better if everybody acts nicely enough so that no one even thinks about going to the courthouse. Or at least not before it's absolutely necessary.]]>
"Internet On Trial" was how Vanity Fair's December issue billed its report on the libel lawsuit against Matt Drudge, the Internet's first political gossip columnist. What's really on trial is not the Internet itself but two other things: the degree to which mainstream journalists demonize the Net and the usefulness of libel law itself.
Drudge, 30, is a news junkie who decided to become a gossip columnist and, thanks to the Internet, succeeded beyond his expectations, if not his wildest dreams. Starting from scratch in 1995, Drudge has built up a subscriber list of (he estimates) 85,000 and won a substantial contract with America Online to publish his online newsletter there as well. And in the past year or so, he has blazed a meteoric path--becoming a frequently read source for political journalists, if not always a well-respected one.
But whatever Drudge's dreams of success at Internet journalism, he almost certainly didn't anticipate the nightmare of a $30 million lawsuit. And that's precisely the amount of reputational damage White House aide and former journalist Sidney Blumenthal is claiming that Drudge and America Online did to him when the online columnist published an item suggesting that Blumenthal has a history of spousal abuse.
As it turns out, Drudge's report, which was based on information from an undisclosed source, adds up to a falsehood--there is no known evidence that Blumenthal ever engaged in anything like domestic violence with regard to Jacqueline Jordan Blumenthal, his wife of 21 years, who heads the White House Fellowships Commission. Tellingly, Blumenthal read the Drudge item on the evening of August 10, 1997, the same day it was released--illustrating the immediacy of Internet news, Drudge's must-read status, or both. (Jacqueline Blumenthal received a faxed copy of the item from a former congressional press secretary the following morning.)
Understandably incensed, Blumenthal had his lawyer, William McDaniel, send what Vanity Fair called a "strongly worded" letter to Drudge, who, after quickly discovering that he could not verify his original item, published an apology and a retraction. Unsatisfied with this response, Blumenthal filed a libel lawsuit against Drudge and America Online, seeking an improbable $30 million in damages.
The case raises a raft of First Amendment issues--most of which have been only casually addressed, if at all, by the legal commentators and media watchers, and all of which undercut Blumenthal's case:
* Who's a public figure? Longstanding libel-law principles hold that a "public figure"--someone who, as the Supreme Court put it in Gertz v. Robert Welch Inc. (1974) thrusts himself "into the vortex" of public debate--bears a heavier burden of proof than a private individual plaintiff. While the latter may need only to prove negligence (under some states' libel laws) in order to recover damages, a public figure must prove that the publisher of the defamation either knew the statement was false or that he didn't care whether it was true or not. This poses a tough problem for Blumenthal, whose work as a pro-Clinton journalist almost certainly would qualify him as a public figure even if he had not followed up that work with a new job on the White House staff. While Drudge was (in my view) almost certainly negligent in what he published, there's no evidence yet that shows he knew it was false or that he didn't care about its truth--quite the contrary, in fact.
* Vicarious liability. Drudge is not the only defendant, of course. Surely America Online's assets are the main reason for the inflated monetary demands. But where $30 million might have seemed a fair figure if Blumenthal had been publicly humiliated and fired from his White House job, press reports indicate that, if anything, President Clinton has been quite supportive of Blumenthal in the aftermath of Drudge's erroneous report; he even allowed Blumenthal to state publicly that he had the president's support in suing the online journalist. Still, this logic might escape a trial court appalled by the gravity of Drudge's spousal-abuse charge, and if it were to award damages of $30 million, America Online is the only party to the case that might conceivably be able to pay it.
But once again Blumenthal has a problem--namely, that America Online, which provided access to The Drudge Report but did not prescreen it, cannot reasonably be said to have had the kind of relationship to Drudge that, say, The New York Times has to its reporters. A traditional news organization like the Times can be held legally and financially responsible for any libels its reporters generate because the Times has editorial policies and an editorial hierarchy ensuring that nothing will appear in the newspaper that its editors have not approved before publication. And ever since the milestone 1964 case New York Times v. Sullivan, the Supreme Court has grounded libel liability on the concept of "scienter": A successful plaintiff must be able to show that the publisher either knew or should have known about the offending content prior to publication.
McDaniel, Blumenthal's attorney, has hinted he may sidestep this evidentiary hurdle by showing that America Online was reckless even to contract with Drudge--that Drudge's reputation for publishing unsubstantiated rumors should have kept the service provider from signing a contract with him, just as a builder should know better than to hire a subcontractor with a reputation for drunkenness or negligence. But this is, after all, Drudge's first libel lawsuit; it can hardly be said that AOL should have known Drudge was going to publish actionable material when there were no previous cases to show AOL he had done so in the past. Given that the legal theory behind suing AOL is shaky at best, AOL's presence in the lawsuit is hard to justify, legally speaking. Even if Blumenthal loses, the prospect of such lawsuits may scare AOL and other providers away from carrying controversial political content.
* Reputational damage. Let's suppose I'm wrong about Blumenthal's status as a public figure and about his ability to keep America Online in the lawsuit. There remains the issue of whether Blumenthal has actually suffered any damage to his reputation at all--much less $30 million worth. I won't dispute that Blumenthal found Drudge's false story personally painful--he and his wife surely did. But the raison d'être of libel law is damage to reputation, not to one's psychological well-being. That's why "publication"--legalese for the showing of the defamatory statement to a third party--is the sine qua non of libel cases: You can't have committed a libel merely by hurting someone's feelings privately.
We can start by reminding ourselves that Drudge quickly
retracted his false report and apologized for it--more than once,
as it happens. This means that, at the very least, the same
readership who saw the original erroneous report saw its
retraction, which ought to be enough to reduce the reputational
damage--whatever it might have been--significantly. But that can't
be the end of the inquiry, since Drudge's retraction, and
Blumenthal's announcement of the lawsuit, were immediately reported
and discussed all over the Internet with an audience far
than Drudge's core subscribers. What's more, it was a headline-grabber in lots of traditional media outlets as well, including The Wall Street Journal and The New York Times.
This raises a central question for the case--one that not only calls the whole foundation of the lawsuit into question but also underscores the extent to which both traditional media and traditional legal commentators have been willing to shut off their critical faculties when it comes to thinking about the Internet: Is there anyone at all who knows a) who Blumenthal is and b) what Drudge originally wrote about him but who does not also know c) that Drudge retracted his story? I'm willing to bet that the answer to this question is a solid no.
The answer might be different if Blumenthal were a public figure as widely known as, say, Bill Clinton--or even Conan O'Brien. But Blumenthal is well-known only in those circles that pay attention to bylines in The New Republic or The New Yorker--Blumenthal's former employers--and you can bet that to anyone with whom Blumenthal even has a reputation, Drudge's flat retraction is already old news. In other words, this is one case in which the media--both old and new--have functioned just the way they're supposed to in an open society. Drudge's correction has caught up with, and even outpaced, the original defamation.
This fact is obvious to anyone who reflects on the Drudge case, but it is a fact that has nevertheless been omitted from virtually all of the reports about the case, which, when not skewed by partisan comments (liberals tend to be anti-Drudge, and conservatives tend to defend him reflexively) are full of comments about the Internet as a no-man's-land of dangerous speech that is only just now being civilized by the legal system. In reality, the Net has always been subject to libel law (as well as other laws), and no reasonable person has ever supposed that he couldn't be sued for saying something libelous on the Internet. A good indicator of the kind of nonsense one hears from legal commentators dealing with the Net is the statement that we "don't know what the rules of the road are."
The fact is, we do know what the rules are, but what most of the pundits have yet to grasp is how the old rules play out in new ways on the Net. For example, one of the reasons a newspaper can still be made to pay a libel defendant even when it has published a retraction is that the retraction (one may reasonably argue) never has quite the impact that the original defamation did--not even if it's printed on the front page, and not even if the falsity of the report is further publicized by the filing of a libel lawsuit. That's why Richard Jewell, the hero of the Olympic bombing whose reputation was seriously damaged by the FBI's irrational identification of him as a suspect in the crime, and by the press's exacerbation of that damage with its own wildly speculative reports, is still in the process of extracting tidy monetary settlements from news organizations around the country. Publications such as Time took months to clear the air--quite a contrast to the immediacy of Drudge's retraction.
This has not prevented would-be legal pundits from dithering about the Net. "If anything, a libel on the Web is more permanent in impact even though it is evanescent in form," University of Virginia law professor Robert O'Neil told New York Times reporter Carl Kaplan. O'Neil's comment is an odd one from someone who's also director of The Thomas Jefferson Center for the Protection of Freedom of Expression, but not untypical of remarks by a legal commentator in these days of social panic about the Internet. What the commentators in this case have somehow missed is that ink on dead trees is a little more permanent than your average webzine and that Blu-menthal's sufferings, whatever they may have been, don't hold a candle to Jewell's.
And for that Blumenthal has two phenomena to thank: the immediacy of news reporting on the Net, and the willingness of the media to sensationalize any story that makes the Net look scary. Operating in tandem, these factors have made the retraction a bigger story than the libel ever was--which in turn makes Blumenthal's lawsuit look a lot more like opportunistic overreaching and a lot less like justice in action.]]>