Everyone is scrambling around, trying to figure out what the web is going to do to publishing , copyright, and intellectual property rights. Some are even going so far as to suggest that browsing without paying a surcharge for every page is equivalent to making illegal copies of published work. That makes about as much sense as a three legged billiard ball.

In the digital world, copyright infringement must be defined in terms of redistribution, rather than copying or downloading. And that's all it needs.

If I want to make your creative effort available at my site, all I have to do is point to it. You can't do this in the analog world and so we have special rules about making additional physical copies. When I include a link to your site you still have control over the content, its form, and even whether or not that page or element remains available. If I copy it and use the copy rather than the link, then you no longer have any control over the distribution of your bits. I have become an unauthorized redistribution point and there lies the infringement, not when someone just looks at your page.

Paper and ink publishing has two distinct components. Someone needs to manage the physical construction and distribution. This includes setting the type, sewing the signatures, working the binding, and carrying boxes to market. The second component is the content, the shape of the ink on the pages. People buy the book for the ink, but the publishing industry provides the medium for it.

Because nobody wants to buy books with empty pages publishers hire writers to create their content for them. The same is true for musical recordings. Without the groves or pits, it's just a bunch of plastic. Because of the time and effort to produce books and to distribute them, analog publishers have an interest in providing only quality content that they think will sell. This is why writers and musicians have always had to justify themselves to the people who own the printing presses and recording studios.

Of course we don't actually need the publishers. An author or musician can rent facilities and print his own books or press his own music. If you do this you become your own micro publisher and are responsible for all aspects, from creating the content to handling the sales.

Enter the web.

The publishing component here is made up of the physical infrastructure, the delivery mechanism of telecommunication lines, ISPs, and operating systems. Instead of hiring typesetters companies hire operators to do nightly backups. Instead of hiring engineers to make better pulp mashing equipment they hire engineers to write better switching or caching algorithms.

A big difference between the analog and digital publishing paradigms is bandwidth. Traditional publishing requires thousands of individual, physical instantiations of some particular content which are sold one at a time, and because publishers must maximize the limited resources, they hire editors, graphic artists, and studio musicians to produce a quality product.

The ISP's, on the other hand, provide only the delivery mechanism. Because there are no physical resources, no trees, ink, or shelf space, and because they're selling connect time to people browsing pages across the world, they don't need to bother fine tuning the content that happens to be at their node. They control both sides, the printing press (their hard drives) and the bookstore (the online connection). They charge authors to host their work and to make ephemeral copies on demand and they charge customers for coming by and looking at them

Another difference between the analog and the digital publishing worlds is that, unlike with books and recordings, the publishers get their content for free. They don't pay authors every time they reproduce a copy of a page. This is what is causing such a stir in the copyright world. An author is expected to be able to control and benefit from the distribution of his creative efforts.

But that's backwards.

That's not the right way to look at it at all. Its not publishers getting content for free, but authors getting a world wide vanity press for next to nothing. Can you imagine what it would cost if you didn't have Internet service providers managing the gauntlet of customer relations and technical issues? Our reward is not cash, but the ability to have our works read from Afghanistan to Zimbabwe. For an extra investment the host system can even offer form or password based access, essentially setting up the cash register as well as your entire book or music store, but it's up to you to figure out how to get money in the till. If you want to spend just a little more, you can get a dedicated modem line, set up a nice Pentium machine in your den, and do the whole thing yourself.

We don't want to go back to the days where everyone is limited by scarce resources, where big publishers buy and then control all the content, and where you have to be published to get published. Screw that, man. I'm here to stay!

Digital authors are their own publishers. It's a vanity press paradigm. Everyone needs to figure out how, and even if, to participate and how to get paid, if getting paid is what one wants. The thing we can't do is ignore the basic facts of the digital world.

We need to start by not destroying the copyright laws. In the digital world the rights of authors must be dissociated from any notion of individual copies, temporary or otherwise, and must be tied to the control of the distribution. If you choose to make a digital work available on the Internet, anyone in the world with a browser can get a copy if he wants. If you're not ready to give it away, don't put it on the web. If you want to put your product behind a credit-card or e-cash form, then your right to do that should be protected and anyone making your bits available on their site without your consent is infringing.

This isn't really all that different from the analog world. I can borrow a book from the library, or rent a video. The fact that we can spread the content around to several people using only a single physical instantiation of the work is similar to the way two people can access the same unrestricted web site. You might say that it's different because with the web those two people can access the information at the same time. Yeah, and I can have my friends over to watch the movie with me. The only real problem comes if I duplicate the tape and start selling copies or show it to an entire auditorium, because then I'm controlling distribution behind your back.

Let's say you've got a new product and you decide to give it away for free for one week to stir up some interest. After that week you take it off the web or put it behind a credit-card form. If during that week I download your product and then make it available on my web site, I have interrupted your ability to control the distribution of your product. For that one week, you chose to give it away. There it is, free copies for anyone. Calling that a copyright infringement by the people who visit the site makes as much sense as arresting people who dare to look up at the billboard you posted next to the airport expressway. Now, if I break past your form, steal your bits, or buy them and post them on my site, then there is an infringement.

There's another fact of digital life that helps protect the author despite the ease of digital copying: Information want to be free, but the freer it is, the dirtier it gets.

If you put a copy of the world's favorite word processor on your site, thousands of people might get free copies before your account is terminated. Thousands of people might also get the virus you hid in there just as easily.

Once a product is out of the shrink wrap, or the zip file has been downloaded from the site, not only do we have the ability to make perfectly exact copies for our buddies, we also have the ability to make perfectly nasty counterfeits. Even if the intent is not malicious, entropy has its way with bits as with everything else and the more hands that touch the data between you and the source, the more potential for trouble there is.

In other words, there is value in going to the source. Let's say some fellow decides to bust the law and posts a major software package in one of the binary newsgroups. You could download the twenty segments of his zip file, assemble them by hand, wait for him to repost file numbers 6 and 11, merge them, uudecode them, unzip the result, try to install, and hope that whatever he gave you has all the pieces and then try to figure out how to use it without the manual or any access to customer service. Maybe he makes it easy by putting it on a secret page at his web site, but are his copies of the dll's and device drivers just what you need? Is it the real thing or a buggy beta release? Is it really worth the hour and a half download time? With all that, it's probably just easier to pay the forty bucks in the first place.

There will always be second hand copying in the digital world, but the same thing that makes a digital work easily copyable also makes it easily fakeable, and this will cause people to want to drink from the source. For this reason the domain name is as important as the brand name. Getting news from the local.newspaper.com is as good as getting it on your doorstep. Software from foo.bar.com or one of its authorized resellers will be as good as getting it off the shelf, and maybe even better because you're getting the latest bug-fix release.

So, not only should we focus on distribution rather on copying, the problem of counterfeit distribution is in large part taken care of in a natural way by the convenience and reliability of getting the original, authentic bits, even when we have to pay for them.

The digital work itself is only one part of a complete package which includes things that you can't very well digitize: customer service, trust in the provider, timelines, convenience, accuracy. Sure, the data can flow into a secondary market, but as long as these other factors are provided only from the original source there is value in going there instead of picking it up off the streets.

Traditional publishing is not going to go away because of the Internet. You can give something away in digital form and still there will be a market for a well made hard copy of the same thing. It's much easier to buy a book than to string a phone cable out to the back yard or waste good printer paper and toner printing out the three hundred pages of some web site. The web can be used as a supplement or doorway to selling books and music. Whether or not giving away content is helpful or not is a decision to be made by each author individually. We certainly don't need lawyers and politicians telling us that we all have to do it their way, especially when most Senators seem to think of the Internet as a big digital crime factory, suitable only for posting bomb recipes or distributing pornography to children or stealing copyrighted material.

The rumors of the death of copyright are greatly exagerated, unless the opportunists kill it so they can make an extra buck.

There are other questions about fair use, but those also don't need any new law. An author retains his right to the original source in its original presentation. Using pieces of other sites creates a new element which is built upon the original sources. This includes borrowing music clips, colorizing, resizing, cropping parts of an image, or quoting a couple paragraphs.

Cool backgrounds get copied from one web site to another. Images get resized, embossed, and turned into icons. Someone's guitar riff announces your arrival to a page. Your nifty little dragon gets compressed, colorized, and incorporated into someone's gaming page. The bits are there and you've got to assume that they're going to go walking. When you include a quote from some source or use a sound clip from another recording in your song or make an icon out of part of someone's picture, must you pay the original artist? Must you acknowledge him? Whether or not the alteration or repackaging of someone's original bits is an infringement or falls within the fair use definition may need to be determined by the courts one case at a time, but that distinction need be no more complex in the digital than the analog world.

The Internet promotes a sense of sharing and cooperation because of the ease of this digital reworking. If you have some digital work you feel so strongly about that you would take someone to court for using any excerpt from it then you're better off keeping it away from the Web and staying out of everyone else's way. However, if someone else is making your work available in its entirety without your consent, then you should complain.

Here's a subtle point. Given the two links,

• <img src=www.your.domain.com/path/file.jpg>
• <img src=mycopy.jpg>

the first would be allowed while the second would, technically, be an infringement because of unauthorized redistribution, even though your page looks exactly the same with either one. The point, of course, is that your page looks the same only as long as the owner of the image continues to make it available. You might have the image cached, but that's you, not everyone else who comes to your page.

Another issue is electronic redistribution of printed work. For a couple decades we have had online news services, but the web now places special focus on these. If you're a publisher, don't sign a contract without acquiring electronic redistribution rights, and expect to pay a little more to the contributing authors and photographers. If you're an author, learn to live with this fact of life or start your own magazine.

Copyright is not in trouble. The very idea of copyright is not a payment scheme for writers or musicians. Its purpose is to guarantee authors a right to their original expression while encouraging others to build upon the ideas and information presented by their work. Authenticity of the original work is in the domain name, and building on other pages is what the web is all about.

What we don't want to do is ruin what legal protections we still have by making the law ridiculously restrictive thus rendering it irrelevant.

:^D