In short, [proponents of more aggressive copyright enforcement] made unrealistic demands on reality and reality did not oblige them. Copying only got easier following the passage of these laws—copying will only ever get easier. Right now is as hard as copying will get. Your grandchildren will turn to you and say “Tell me again, Grandpa, about when it was hard to copy things in 2012, when you couldn’t get a drive the size of your fingernail that could hold every song ever recorded, every movie ever made, every word ever spoken, every picture ever taken, everything, and transfer it in such a short period of time you didn’t even notice it was doing it.”

I’ve found myself stressing this to reporters who call to ask about what we should do “instead” of SOPA and PIPA, because the framing of this entire debate remains mindblowingly shortsighted. In five years, regardless of anything Congress does now, the current round of garment rending over “rogue websites” is going to seems as comically quaint and irrelevant as old jeremiads against the libidinous excesses of jazz dancing and Elvis lyrics. The big, dumb, obvious technological fact that an awful lot of smart people seem reluctant to grok is this: Copying and sharing information is vastly cheaper and easier than it has ever been at any time in human history. It is also vastly more difficult and expensive than it will ever be again.

This weekend I finally upgraded to the latest version of Mac OSX, Lion. Owing to some weird decisions by Apple, I had to install it from physical media: An 8 gigabyte “thumb drive,” which is really rather misnamed, because it’s actually about the size of two wooden matchsticks. The year I was born, that amount of data storage space—without any software—would have cost more than the office building you’d need to house it. The year I got my drivers’ license, it would’ve cost about as much as a good used car. In 2012, 8 gigs of storage is the kind of thing you give away as freebie conference schwag—like a logo-embossed pen, except a good deal smaller. If I decide to use it for something else now that I’m done installing the OS, it will easily accommodate about 4 feature-length films in high definition. IBM recently announced a breakthrough in storage technology that could increase current capacity by a factor of 100 within a few years, which means instead of just carting half our music libraries around with us in our pockets, we’ll have entire music libraries, and high-def video libraries to boot.

One of the features I noticed they’d added in Lion is Airdrop, which establishes an ad hoc peer-to-peer WiFi connection with other nearby Apple devices. This isn’t particularly useful for my desktop, since anyone who’s actually in my apartment is probably already on my home WiFi network, but one can imagine it being awfully handy for mobile devices. “What am I listening to? Hang on, I’ll beam it over.” For transfers outside physical proximity, the next generation wireless data standard recently approved by the International Telecommunications Union maxes out at about a Gigabit per second. In practical terms, that means about a minute to transmit  an uncompressed music CD (and much shorter for, say, MP3s at the bitrate you get from iTunes) or 90 seconds for a high-definition TV episode.

Existing online social networks, with near universal adoption in many social circles, already provide a trust infrastructure for limited sharing that will make these kinds of transfers almost impossible to police—or even reliably detect. In a world where every teenager in the country is carrying a pocket-sized server, and encrypted wireless VPN relays can run out of palm-sized cubes, an enforcement strategy based on raiding data centers is just going to look cute. Legislators who think “the Internet” means “the Web,” who are too fixated on the problems some lobbyist is complaining about right now to think two steps ahead, are in for a rude awakening. They’re in the grip of the enforcement fantasy: The misapprehension that technology is going to stay still long enough for traditional, targeted law enforcement approaches to effectively limit the scope and scale of copying.

That’s not to say that nothing can be done to avert a near-future world of largely unregulated and unregulable copying and sharing. If we were willing to implement  a comprehensive scheme of innovation-stifling technology mandates and pervasive surveillance so absolute as to  make the People’s Republic of China look like Burning Man, it could at least be delayed. But I assume that the United States is not yet prepared to completely betray its basic principles to safeguard the profitability of Friends reruns.

If we’re not willing to be China, though, then all these discussions about “what we’re going to do” about piracy are just the wonky equivalent of fanboy debates about whether Wolverine would beat Batman in a fight, for all the bearing they have on reality. What are we going to do that makes a long-term difference? Nothing. Anyone who wants to copy stuff without paying for it can do so easily, and it only gets easier and faster from here. Finding this morally outrageous or throwing a tantrum about the deep unfairness of it all won’t make it less true, though the tantrum might break a vase or two.

A slightly more Zen approach would be to “accept the things you cannot change,” as the coffee mug has it, and take the opportunity to step back and reevaluate. We have a legal structure for incentivizing creativity that makes copying and public performance the key points of regulatory intervention. There isn’t some deep moral reason that it’s these points and not others. There are lots of other ways to enjoy creative works without paying the creator, after all: Borrowing a copy, buying used, watching at a friends house, DVRing the broadcast and skipping all the commercials, incessantly singing (to yourself or with a friend) that catchy tune you overheard in the cab. Nobody tries to claim those are “stealing,” mainly because we’ve decided not to try to regulate those activities.

We decided to regulate copying instead, because copying was a lot easier and cheaper to regulate when we wrote the copyright statutes. Copying a book or record on a mass scale, unlike lending or singing in the shower, was not the kind of thing an ordinary person had the necessary equipment for—and the equipment tended to be bulky enough that you could usually track it down without having to pry into a lot of homes (and bathrooms). But the thing we decided to regulate because it was rare and expensive is now as cheap and ubiquitous as all the other stuff we didn’t regulate because it was cheap and ubiquitous. The good news is, most people are still glad to pay for the content they really like, if it’s provided in a convenient form and at a reasonable price, even when they can (or did!) easily copy it free. But maybe that’s not enough, and there are other points of regulatory intervention that will help creators internalize enough of the value of their output to make the investment worthwhile. That’s an actually productive subject of inquiry, but it’s not one anybody’s putting much effort into as long as they remain in the grips of the enforcement fantasy.

Proponents of ever stronger and longer copyrights, supported by ever more draconian enforcement mechanisms, like to toss around terms like “piracy” and “theft” for the emotional reactions they provoke. This is not, as Matt Yglesias notes, an aid to clear thinking: Copyright infringement and theft are both illegal—along with jaywalking, murder, and speeding—but they’re otherwise quite different acts, which are quite properly treated very differently as a matter of law, and prioritized differently as a matter of enforcement practice. The most obvious reason the analogy fails is that “theft” centrally involves depriving the owner of the thing that’s stolen. Copying a CD or DVD for a friend—or letting them borrow your copy, for that matter—may occasionally displace a legitimate purchase, but it doesn’t leave the artist or rightsholder with any fewer copies than they had before. That’s not to say copyright infringement isn’t also problematic, or something the government needn’t worry about deterring. Copyright maximalists insist on “theft” instead of “copyright infringement,” however, mostly because they don’t want people thinking too hard about the myriad ways these offenses are different, and how they might therefore call for different policy responses.

But if the defining characteristic of theft is that it deprives the victim of something they were entitled to use and enjoy, then there are things that can accurately be described as “intellectual property theft.” When legislators—many of whom now support censoring the Internet to stop “piracy”—rewrote the copyright bargain with the Sonny Bono Copyright Term Exension Act, they retroactively extended the monopoly of rightsholders over existing works by 20 years. That retroactive extension, of course, did nothing to incentivize new creation. And since economists have estimated that the present value of a copyright monopoly was already barely distinguishable from the value of an unlimited term, it’s doubtful that even the prospective extension bought us much additional creativity. But it did mean that the general public would be denied, for another 20 years, the free use of works that had been slated to fall into the public domain under the original copyright bargain. That sounds more like “theft” of intellectual property—and not just theft from a particular creator or industry, but from the whole of the public.

When rightsholders engage in copyfraud, insisting that other creators beg for permission and pay licensing fees for “fair uses” copyright law allows—and when skittish lawyers make that insistence effective, creators and their audiences are deprived of a use of that intellectual property they’re entitled to. When overbroad DMCA notices sent by careless lawyers remove original creations that making novel transformative use of prior work from the public Internet, users are robbed of art they are entitled to enjoy.

The pillaging of the public domain is real “intellectual property theft.” How about a crackdown on that?

I recently did a diavlog with my friend Tim Lee on the new BloggingHeads spinoff site TechHeads, during which I had a thought that seems like it might be worth spinning out. We’re all accustomed to seeing horror stories about ludicrously broad, bad technology patents that have given rise to a wasteful arms race between real tech companies and patent trolls. A growing body of scholarly literature suggests that two decades of software patents, in particular, have been a hindrance rather than a net plus for innovation, and I think it’s worth thinking a bit about why that’s especially likely to be the case.

It has probably always been the case that our intellectual property policy has been skewed by a romantic vision of the lone genius in his workshop crying eureka! as some radical breakthrough strikes—when real innovation is more a matter of gradual, cumulative evolution. But I suspect it’s also true that one kind of innovation is more likely when you have a small number of pioneers working in a new field. A Newton or an Einstein born today wouldn’t be as likely to make similarly earthshattering contributions, partly for the simple reason that Newton and Einstein already did it (you can’t write the Principia twice), and partly because with thousands of people making small, incremental additions to our knowledge pool, it’s harder for even a genius to outpace them in a single bound. But we still want our genius—an identifiable individual to credit with the latest leap forward.

The thing is, as technologies mature, and innovation is more likely to proceed by a series of increments that shouldn’t be individually patentable, it also becomes much harder to police the quality of patents, which makes it more likely bad patents will slip through. To see why, consider the old economist’s aphorism that “division of labor is limited by the extent of the market.” That is, the more people are connected in an extended system of economic cooperation, the more specialization becomes possible. Robinson Crusoe has to be a generalist—has to know how to produce everything he’s going to consume. In a small isolated village, most people need to be food producers first and foremost, and a few others can focus on providing other necessities. In a globally networked marketplace, an incredible amount of specialization is possible—which is why, notoriously, there’s almost no type of porn so bizarre or niche that someone hasn’t created a website dedicated to providing it.

When my parents were children, “computer programmer” was not even an occupational category. Now we have thousands upon thousands of people who specialize in working on very specific types of software: Web applications or encryption or databases or first-person-shooter games. Crucially, an innovation developed by one person can be circulated to a whole community almost instantaneously—which makes it less likely that we need a “genius” to make huge innovative leaps because small components of his big idea, if they do already exist, are scattered across obscure journals in other languages where he’ll never encounter them. Predictably, this enables an enormous amount of very rapid progress.

It also makes it a lot harder to evaluate patent quality. Patents are not supposed to just be a pointless monopoly granted to the first person who happens to file a description of a particular invention with the Patent Office; the justification for granting the monopoly is that it (in theory) elicits innovations that would not exist but for the incentive a patent provides. To that end, patents are only supposed to be granted for inventions that are “non-obvious.” But of course, “obvious” is a relative term: You wouldn’t want to give an industrial engineer a monopoly on some minor improvement to a production process just because it might not be obvious to me. The standard, rather, is whether it would be obvious to a person “skilled in the relevant art” applying reasonable diligence and effort.

The more highly specialized professionals are in rapid communication with each other, the more likely it becomes that you’ll see innovations that are “obvious” because they involve combining various disparate kinds of incremental prior innovative steps, but which don’t have “prior art”—meaning nobody has taken that exact step before, because it required a bunch of other pieces to be in place before it was viable. So searching for “prior art”—if that means exactly the same preexisting invention—becomes a less reliable guide to what is “obvious” in the relevant sense. But as specialization increases, it also becomes vastly more difficult for a patent examiner with broadly relevant training (engineering and electronics, say) to use his own understanding and expertise as a guide to what is truly “obvious” to someone trained in the specifically relevant domain (say, engineering mobile cellular data networks). It’s increasingly unreasonable to expect even the smartest and most diligent examiner—even assuming away all the bureaucratic and institutional incentives to err on the side of granting patents—to judge the “obviousness” of innovations across an ever-proliferating array of subspecialties.

As specialization increases the number of eyes on each particular type of problem, it also shifts the degree of non-obviousness that makes the granting of a patent monopoly a wise bargain for society. As I suggest above, when a small number of people are working on a problem, and in only sporadic communication, then you’re more likely to need someone to make a big leap to hit on an innovation rather than relying on the accumulation of many small incremental insights. (Perversely, patents may create an incentive to keep quiet about those incremental insights along the road to a functioning, patentable idea.) But sheer numbers also make it vastly more likely that someone—and more likely many someones independently—will arrive at even less-obvious ideas. If only 1 in 100 people working on a type of problem would hit on a specific solution, it seems a stretch to call it “obvious.” But if there are 10,000 people working on the same class of problems, that’s still 100 independent inventors.

That very much changes the shape of the problem patents are meant to solve. If you’re in a market with a dozen other players, then in the absence of a patent monopoly, your inventive might be to take measures to keep that one-in-a-hundred innovation secret so your competitors can’t copy it. (Send me your raw materials and I’ll apply my new improved production process behind closed doors, rather than making a machine to sell.) The public loses the benefit of learning how the invention works because secrecy is an effective alternative means of maintaining a monopoly. If there are a thousand other players in the same market, the perverse secrecy incentive drops away, because you can be reasonably sure lots of other people are going to hit on the same invention, and it’s likely that your costly efforts to maintain secrecy won’t actually leave you with a monopoly, or even ultimately prevent the knowledge of how the invention works from getting out.

More specialization, in short, means that society can get the benefit of even less-obvious innovations without having to pay the cost of an inefficient monopoly grant. Needless to say, the greater the efficient standard of “non-obviousness”—the larger the logical leap it makes sense to require from “prior art” to a new innovation before that step becomes patentable—the harder it is for a non-specialist examiner to correctly apply that standard.

So there’s an irony here: As a sector becomes more innovative, as even “good” patents become less necessary and more likely to hinder rather than spur innovation on net, and as the economically efficient “non-obviousness” standard for patent issuance rises, patent examiners necessarily become less likely to be able to discriminate effectively between good and bad patents. In other words, the circumstances under which it is efficient to be granting fewer patents are the very circumstances under which patent examiners lose the ability to accurately judge “obviousness,” and therefore become more likely to grant more patents. No wonder it’s such a mess.

In early July, the bankrupt tech company Nortel put its 6,000 patents up for auction as part of a liquidation. A bidding war broke out among Silicon Valley powerhouses. Google said it wanted the patents purely to defend against lawsuits and it was willing to spend over $3 billion to get them. That wasn’t enough, though.

The portfolio eventually sold to Apple and a consortium of other tech companies including Microsoft and Ericsson. The price tag: $4.5 billion dollars. Five times the opening bid. More than double what most people involved were expecting. The largest patent auction in history.

That’s $4.5 billion on patents that these companies almost certainly don’t want for their technical secrets. That $4.5 billion won’t build anything new, won’t bring new products to the shelves, won’t open up new factories that can hire people who need jobs. That’s $4.5 billion dollars that adds to the price of every product these companies sell you. That’s $4.5 billion dollars buying arms for an ongoing patent war.

Perhaps this is an obvious point, but it’s worth dragging it out explicitly: The very existence of such massive trade in “defensive patents” is, in itself, pretty strong evidence that there’s something systematically quite wrong with the American patent system—because a patent that’s useful for “defensive” purposes is very likely to be a bad patent.

As everyone acknowledges, there’s a large deadweight loss involved in the creation of any patent system (and intellectual property more generally), because it prevents people from making free use of an intrinsically non-rivalrous good: Information. The static loss is, in theory, supposed to be outweighed by a dynamic gain: The incentives created by the patent system lead to the creation of new inventions that would never have existed but for the inventor’s ability to fully internalize the value of that invention.

But now think about how defensive patents work. Companies aren’t buying them—or buying into the services of companies like Intellectual Ventures—because they provide otherwise unavailable technical insights. The point, rather, is to acquire (or have access to) a bundle of patents that any potential litigant who sues you is likely to be “infringing” in their own products. Like nuclear weapons, the point is not to actually use them—but only to be able to threaten to use them if anyone else should deploy theirs against you.

This only works, however, if other companies are almost certain to have independently come up with the same idea. A patent that is truly so original that somebody else wouldn’t arrive at the same solution by applying normal engineering skill is useless as a defensive patent. You can’t threaten someone with a countersuit if your idea is so brilliant that your opponents—because they didn’t think of it—haven’t incorporated it in their technology. The ideal defensive patent, by contrast, is the most obvious one you can get the U.S. Patent Office to sign off on—one that competitors are likely to unwittingly “infringe,” not realizing they’ve made themselves vulnerable to legal counterattack, because it’s simply the solution a good, smart engineer trying to solve a particular problem would naturally come up with.

Needless to say, every patent granted for an idea that any number of suitably skilled engineers could have (and would have, and did) come up with is a patent that probably shouldn’t be granted—a pure deadweight loss that’s actually compounded by the squandering of resources on the “arms race,” with no compensating dynamic gain. Actually, there’s probably a dynamic loss: You end up creating a huge incentive for smart and skilled people to spend their time and energy not coming up with a brilliant idea that nobody else would have, but instead trying to be the first to put on paper ideas that are obvious (to a properly trained and up-to-date person) but haven’t been locked down yet—the solution, again, that almost any professional would have come up with once they were actually trying to implement the relevant technology. A sector where investment in defensive patents is so massive, then, is a sector where—even if some of them do genuinely add value—patents are probably doing more harm than good on net.

Update: Conveniently, via Techdirt, some empirical support for this idea comes in a new paper by Stanford law prof Mark Lemley. Rather than being produced by a lone genius who must be granted a monopoly to encourage creation of a benefit we’d otherwise do without, major innovations are typically independently arrived at by many people or groups nearly simultaneously. They are, as the saying goes, ideas whose time had come.

Suppose that, back in the 70s, DARPA had developed two revolutionary networks. In addition to the precursor to the Internet we all know and love, they had also developed a teleportation network enabling small, inorganic objects to be instantly transmitted via miniature wormholes from any point on the network to any other point. The effect can even be time-limited, so that objects will snap back to their original locations after a predetermined number of minutes, hours, or days has elapsed.

Among the many areas of life transformed by this technology is the entertainment industry. People quickly realize how inefficient it is that all our homes are packed with books, DVDs, and CDs that we’re legally entitled to be reading, viewing, or listening to as often as we like—but in practice only really make use of for an infinitesimal fraction of the time we own them. 

Libraries and video rental stores already take advantage of the fact that most people are happy to read a particular book or movie once, then let someone else enjoy it. But the teleportation network, combined with the power of the Internet, suddenly allows millions of individuals to make their personal copies of these works available for instantaneous loan to others. Every book, movie, or album you’re not currently using, or just about to, is listed publicly as available for borrowing. (Maybe borrowers feed their credit cards into the system, to ensure that you’ll be bought an immediate replacement if your copy should be damaged while on loan.) The massive waste of letting a book or DVD sit unused on a shelf for months or years for every few hours it’s actively enjoyed is suddenly eliminated—to the delight of everyone but the companies in the business of selling those books and movies.

Since the system doesn’t involve copying, but only the transfer of physical objects, it is plainly legal under the First Sale Doctrine: No copyright is even arguably infringed at any point in the process. Because it’s so obviously legal, nearly everyone participates in the system. Possibly some small fee is paid into the system by those who borrow vastly more than they loan out, and transferred to those who do the most loaning. Over time, this evolves, so that when a work is in high demand but short supply, people who don’t want to wait can pool small amounts of money to buy a shared copy (to be resold once everyone’s read/heard/seen it as much as they care to). 

This proves understandably vexing to copyright owners, who find that many fewer copies of each book, DVD, and CD are sold once large numbers of potential buyers are able to get all the satisfaction they wanted from a single, widely-shared copy. The MPAA and RIAA launch a major public relations campaign attempting to persuade people that “lending is theft,” which prompts widespread public ridicule and is, predictably, an enormous flop. Reluctantly, creative industries begin looking for new business models that will allow them to thrive in the changed technological context, while policy makers contemplate whether alternative incentive mechanisms are needed to ensure that creative works continue to be produced. 

Obviously, this fanciful scenario isn’t exactly analogous to unauthorized file sharing, which allows many different downloaders to simultaneously use each particular work—though it’s not clear how great a practical difference this would make, given that each copy still sits fallow most of the time it’s in any individual’s possession. It’s actually not far off at all from a “cloud storage” model we could see emerge over the next few years, however, provided each privately-purchased song, movie, or book can only be used or accessed by one device at a time. (Access might be allowed only to devices incapable of making a permanent copy—though nothing physically prevents me from making a personal copy of a book or CD I have borrowed from a friend.) Henry Farrell points out that it’s also almost exactly the model Zediva is employing for remote DVD rentals (in contrast with the more familiar Netflix streaming).

A situation like the one I’ve imagined might be considered a major policy problem, and it might not.It might have less effect on sales than BitTorrent does in our world, and it might plausibly have more because of higher rates of adoption. But if it were a policy problem, then the problem would have nothing at all to do with the moral properties of “illicit copying,” nor would jeremiads against “theft” from artists be relevant, or likely to be regarded as anything but risible. 

The policy problem would just be this: New technology had multiplied the number of people who were able to enjoy each copy of a work—in itself an obvious and enormous benefit—reducing the number of people prepared to buy individual copies of those works, and calling into question whether the traditional business model predicated on mass individualized sales would continue to supply enough revenue to incentivize production of (enough) new works. Here is a solution no sane person would propose to this problem, if it were a real problem: Prohibit people from using the teleportation network to loan books and movies to their friends, and monitor it to ensure they did not do so.

Some readers, of course, are probably bouncing in their chairs with eagerness to interrupt that my thought experiment is quite irrelevant: In our world, people are shamelessly copying rather than loaning works. True enough. But there’s nothing morally special about copying. It’s a method we regulated to solve an incentive problem, because given the available technology in 1909—when statutes first sought to control “copying” rather than “publication” and “sale”—that was the most efficient point at which to regulate in order to solve that problem. If technology had evolved in order to make mass loaning, rather than copying, instantaneous and frictionless and easy, the underlying problem wouldn’t be any different. Any moral baggage “copying” has picked up is a pure artifact of the chance fact that “copying” is what it seemed to make sense to restrict given early 20th century tech.

So here’s one way to think a little more rationally about copyright policy: Pretend that instead of BitTorrent, we’d invented the Teleporter Library. Then think about what business or policy solutions would make sense in response. It’s a neat way of clearing from consideration a lot of charged rhetoric about “stealing music” that should have been irrelevant all along.

Addendum: Taking the Teleporter Library notion seriously on its own terms, and not just as a kind of allegory about IP, it’s worth noting that in some ways, it would put many consumer goods suppliers in the position our content industry is currently in. Maybe it would continue to make sense for everyone to just continue to own (say) their own screwdrivers and such. But there are a lot of things we only need (at most) a few hours of the day, or even a few days of the year. Some of these things we might nevertheless have various reasons for wanting to own (I don’t want to hook up and then disconnect a dishwasher every time I run it, even if it’s only every other day) but many would more sensibly be shared. Just glancing around my apartment, things I would probably “subscribe to” rather than own in a world of nearly-free teleportation include: Luggage, a printer, a bicycle, toaster, blender, vacuum cleaner, television set, Playstation (and Rock Band controllers)… hell, even my sofa, reading chair, and coffee table don’t really get used more than a few hours a day—and some days not at all… though in the latter cases the convenience of just flopping into them after a long day without waiting even a short time for a “download” might weigh in favor of owning. I can imagine you might see an increase in investment in innovation as each Teleportation Library competed to distinguish its catalog of subscription appliances—and maybe appeal to the broad group of people who’d pay a few extra bucks to have a fancy espresso machine for their dinner party, even though they’d never dream of buying one.

Jamelle Bouie lays out several reasons why popular election of judges is a terrible idea: The need to fund-raise (especially in smaller districts) creates conflicts with the requirement of impartiality; judges start handing down longer sentences to appear “tough on crime” during election season; because judicial elections are usually low-priority, they create the illusion of accountability more than the genuine article… These are all excellent points. But the latter two, at least, seem like symptoms of the more fundamental underlying problem: Ordinary people are generally not in any position to evaluate how well judges do their jobs, and in any event, that job isn’t to satisfy majority preferences. A judge whose rulings always produced the outcome preferred by the majority would, in fact, be a terrible judge.

Though not a lawyer, there are a handful of narrow areas of law I’ve been researching, reading, and writing about heavily for a few years now. I’d like to believe I’ve managed to get a decent handle on those few pet areas. Child, I ain’t passed the bar, but I know a li’l bit. And seeing what a complex and detail-driven process legal decision making is in the areas I do know something about has made me acutely aware of how ill equipped I am to seriously evaluate the quality of legal arguments in other domains. An opinion in a typical case will run dozens of pages (or longer), citing scores of other cases, each with their own equally lengthy opinions and tables of citations. Have the right controlling precedents been identified? Are the fact patterns really relevantly similar, or is there a basis for distinguishing? Have the canons of statutory construction been applied correctly? Usually you can’t tell just by reading an opinion—to really tell whether the reasoning is correct, you’ve got to actually be pretty familiar with all those other cases—and perhaps a bunch more that are relevant but didn’t figure in the decision—as well as all the statutes involved, maybe their legislative histories, as well as all the rules about how, exactly, to apply all those precedents and reconcile conflicts or resolve ambiguities.

Most of us, of course, can’t actually do all that. What we can do is look at the outcome and decide whether we like it or not. But the point of the rule of law is precisely that judges aren’t supposed to make decisions that way: They’re supposed to apply the law neutrally, even if that requires throwing out the case against a criminal who’s probably guilty, or rejecting a sympathetic plaintiff’s claim to compensation, or (for that matter) letting a gang of bigoted sociopaths traumatize a grieving family. And while the Supreme Court enjoys a certain amount of latitude, other judges are supposed to be bound by the rulings of higher courts—even when they think those rulings are profoundly misguided.

A good politician, other things equal, is one who produces the outcomes the majority of people want, and notwithstanding the rich and depressing literature on political ignorance, voters are at least somewhat able to monitor political outcomes. But that’s not at all the test of a good district judge. A good judge is one who engages in the process of legal reasoning skillfully, even when—maybe especially when—the law doesn’t yield the result most people would find more congenial in a particular case. But voters typically don’t evaluate the process—and for the most part couldn’t even if they wanted to. They observe the outcomes, which is exactly the wrong way of assessing judicial performance. In that sense, I might rephrase Jamelle’s last point: Judicial elections aren’t a problem because they provide a mere illusion of accountability to popular will. They’re a problem because judges shouldn’t be accountable on the dimensions that elections naturally track.

Back in 2004 Google shocked the publishing world by announcing that it had been for some time secretly scanning books from major university libraries. Some of these libraries were allowing Google to scan in books that were clearly still covered by copyright. Google tried to convince everyone that this was all just fine under U.S. copyright law by asserting that we readers would only get to experience “snippets” of the entire book that sat in Google’s servers.

This, to Google, was an example of “fair use,” a defense used against an accusation of copyright infringement that gives the public a way to deploy portions (or sometimes all) of a copyrighted work for some publicly valuable use. Critics, journalists, teachers, and scholars rely on fair use every day to quote from copyrighted sources. But what Google proposed was wholesale and revolutionary: It would have turned the copyright system on its head and redefined fair use in ways that were never intended.

I fear Siva’s general wariness of Google is overpowering his normally sound instincts on copyright in the digital era. It’s true, of course, that Google must scan the whole book in order to be able to provide users with search results. But that’s not exactly unprecedented—it’s how search engines work. Google’s computers need to make a copy of the text on all those Web pages in order to index them—how else would they know which pages contain text that matches your search query? And, of course, most of that text is copyright-protected by default. The same goes for image indexing, which courts have given a green light so far. I’d suggest that one reason people have a different intuition about Google Books is that Web content is already in digital form—which means everyone who reads it is “making a copy”—whereas Google was making digital copies of analog works. But as a policy matter, it’s not clear why this should make such an important difference.

Suppose I tweet that I’m trying to remember which Borges story has that line about how “mirrors and copulation are abominable, because they increase the number of men.” Some of my diligent friends hurry to their libraries, flip through their Borges collections, and tweet back the answer—along with a few sentences of the surrounding context. Clearly there’s nothing intrinsically objectionable about the search function, and a quotation of a sufficiently limited portion of the whole work in reply would normally be protected by fair use. The problem is just that Google’s search—and indeed, any computer search—technically requires that a copy be made. But to my mind, this just underscores how increasingly maladaptive it is to make “copying” the primary locus of regulation in our system of intellectual property.

Technology even complicates the question of just what constitutes a “copy”—an intriguing issue I explored in a few articles back in my days at Ars Technica. Imagine, for instance, that Google took a different approach to indexing in hopes of avoiding thorny copyright questions. Instead of storing “copies” of each book, suppose they created a huge database called Google Concordance, consisting of an enormous catalog of every word or short phrase someone might want to look up, followed by a long list, like a kind of super-index, specifying the location on every page of every book in which that word or phrase appears. (“Aardvark: Blackwell Guide to the Philosophy of Computing and Information, Page 221, Line 17, word 3…”) Obviously, the Google Concordance would be a very valuable and useful reference text, and nowhere in the database would you find anything resembling a “copy” of any of the cataloged works. But just as obviously, it would contain all the information a clever programmer would need to reconstruct an arbitrary portion of the original text on the fly, assuming the database could be queried fast enough. You can imagine someone creating certain kinds of “derivative works” in a similar way: If you don’t want the RIAA taking down your mashup, you might try to offer it as an algortithm specifying time segments of component tracks to be combined in a particular manner… an algorithm that might produce gibberish or Girl Talk depending on what files you feed it.

In a sense, it’s always the processing algorithm that determines whether a particular binary string is a “copy” of a work or not. Open an MP3 of a Lady Gaga track in a text editor and you’ll get a wholly original work of experimental literature—though not one anybody (except possibly Lady Gaga) is likely to be interested in reading. For that matter, Google’s database is just an enormous collection of ones and zeroes until some program processes it to generate human-readable output. I distinguished my hypothetical Google Concordance database from a collection of copied books, but if you point to a particular file and ask whether it contains the Concordance or copies of the books, there’s a very literal sense in which there just is no fact of the matter until you know what algorithm will be used to render it as alphanumeric text. This may sound like airy metaphysical hairsplitting, but the power of computers to rapidly aggregate and process dispersed information on a global network is likely to create genuine practical complications for a legal framework that takes discrete, physically contiguous chunks called “copies” as its fundamental unit of analysis. Legally speaking, it would seem to make an enormous difference whether books are scanned and stored as books, or as a comprehensive concordance database maintained by Google, or as a series of hundreds or thousands of complementary partial concordances dispersed across many servers (or even individual hard-drives linked by a p2p network). Given sufficient bandwidth and processing speed, it might make no difference at all in practice. Maybe we should take that as a hint to reexamine our categories.

The Constitution doesn’t explicitly use the term “copyright”: It empowers Congress to grant creators certain “exclusive rights” in their works, leaving open just which rights should be made exclusive. And indeed, many of the privileges lumped together under the rubric of “copyright”—such as public performance and the creation of “derivative works”—need not involve making a “copy” in any ordinary sense of the word. But as the word itself suggests, the way our system has traditionally worked is that if you owned a copy of a protected work, you could pretty much do what you wanted with it—read or view it when and where you like, sell it to someone else, chop it into bits and eat it with Hollandaise if that’s what turns you on—as long as you weren’t making a copy. And for a long time, this wasn’t a very restrictive limitation, because making copies of a work was generally an expensive and labor intensive business that ordinary people had neither the capability nor, indeed, any compelling reason to engage in. Pretty much the only people with motive to invest the substantial resources needed to print books or press vinyl were pirates who planned to sell a bootleg edition for profit. So we got a regime where most uses of a protected work were unregulated, but copying was infringing by default—with “fair use” exceptions to cover the legitimate uses that did require some amount of copying. These tended to be more partial and limited forms of copying—like quotation for commentary and criticism—that were open to people without printing presses, and fairly clearly not meant as market substitutes for the complete original work.

But now, as many writers on copyright have observed, just about every use of a work in digital form requires making a copy—because that’s how computers work. When you play a song stored on your hard drive—whether through local speakers or by streaming it to a mobile device—copies are created. We talk about “visiting” Web pages, as though there’s a text out there we’re all “going” to look at—but of course, every time you read something online, you’re making a copy of it. And again, the only reason we’re able to find content online relatively efficiently is because various companies make copies for indexing purposes—for profit, even!—without seeking permission from every person who’s got content online. (I hope it’s clear that it would beg the question to say that posting something online to be read by the public implies consent to copying for indexing purposes.) What was once a rare activity has become a ubiquitous concomitant of all sorts of ordinary uses of content. All these acts of copying are still presumptively regulated, but we assume they’re either tacitly permitted by the rights holder or shoehorned by the courts into one or another of the fair use “exceptions” that have been defined to accommodate the changing technological reality. (Ordinary people had no occasion or capability to “time shift” or “place shift” content until the past few decades.)

Instead of ginning up exceptions to a general prohibition on copying just to permit publicly valuable use of content, maybe we should just admit that “copying” no longer makes sense as a primary locus of intellectual property regulation. Fair use analysis typically employs a four factor test, but the upshot is usually to see how a particular type of copying would affect the market for the original work—which makes sense, given that the purpose of copyright is to give creators a financial incentive to produce and distribute new works. If that’s fundamentally what we care about, though, a default property-like right of control over copying, which now has to be riddled with exceptions to allow almost any ordinary use of content, looks like an increasingly circuitous Rube Goldberg mechanism for achieving that goal. I’m not sure what the alternative would be—or even whether rejiggering the basic categories would alter the the underlying analysis much. But—just off the top of my head—you could imagine a system where the core offense was not “copyright infringement” but some kind of tort of unfair competition with an original work. In many cases it would yield the same practical result, but at least we’d reorient the public discourse around “copyright” to focus on measurable harms to creators’ earnings—and ideally get away from the confused notion that copying without permission is somehow equivalent to “stealing” by default unless it fits some pre-established exception.

Addendum: This is implicit in much of the discussion above, but probably worth spelling out explicitly. Until the advent of consumer computing—and especially the Internet—almost all “processing” or “use” of copyrighted content took place in human brains, because… well, where else? An external “copy” or “derivative work” based on that content would generally appear (if at all) as the end product of whatever operations you performed on the temporary copy stored in your brain—which, mercifully, no government has yet held to be susceptible to takedown notices. Your mental copy of the public library book didn’t count for copyright purposes, and if you copied down a few passages in a notebook (the results of your search query), they’d pretty clearly be fair use in the unlikely event the owner even became aware of them. If you wrote a song with a baseline inspired by “Superstition,” the transformation would happen in your head rather than ProTools, and if it didn’t sound too exactly similar, people would call it “influence” rather than “sampling.” Myriad McLuhans manqué have written about how technology and the cognitive outsourcing it enables are transforming our habits of thought and learning—spurring a shift from the acquisition of memorized information to the acquisition of information search skills.

One way to frame my argument above is in terms of what Larry Lessig calls “translation“: Laws establish a balance between competing interests—intellectual autonomy versus cultural control, say—against a specific technological and legal background context. If you have legal rules that protect privacy mostly by means of property boundaries, and then technology (wiretapping, long-range mics) makes it possible to collect intimate information from within a home without physical intrusion, the balance will shift dramatically even if the formal rule remains exactly the same. In fact, if you want to preserve the previous balance between law enforcement and privacy interests, you may need to adopt an entirely different legal paradigm. (Which, indeed, is what we did—though it took 40 years.) Cognitive outsourcing, like long-distance communications, may change the balance in undesirable ways by shifting formerly unregulated mental tasks into the regulated space of digital copies, just as wiretapping temporarily shifted government searches out of the regulated space of property intrusions. The thing to bear in mind is that the particular regulatory trigger is usually a proxy for some more complicated underlying set of interests. If a technological change means a set of activities that were previously unregulated are now effectively highly regulated (or vice versa), we should think very hard about whether we want to preserve the existing formal architecture or—as I think will usually be the case—the same balance of interests.

Addendum II: As I mention above, I’m scarcely the first person to whom most of this has occurred: Ernest Miller in the comments points to a paper he and Joel Joan Feigenbaum wrote way back in 2001 called “Taking the Copy Out of Copyright,” which I’m looking forward to reading. At first glance, I’m reminded (and curse myself for having forgotten as I wrote this post) that American “copyright” law did not initially mention “copying” as such, but rather focused on publication, printing, and sale.

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

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