A few folks sent over Larry Downes excellent recent analysis of both Google's moves in China and its lawsuit with Viacom
over YouTube. He notes that the key similarity in both stories is how property rights don't make much sense for information, and how using a traditional property analysis in both cases leaves you coming up short. Specifically, with China, he points to a lack of interest in a marketplace of ideas, and with Viacom the problem is that intent is never taken into account. That is, with traditional property analysis, "theft" is done to take something away from someone else for your own good. But in the case of people posting videos to YouTube, the opposite is the case. People are trying to better share
Viacom content, to better promote it. As such, Downes wonders if there's room for an "intent" mechanism in judging certain actions, with a question of whether the use is "productive" or "destructive":
Both these cases highlight why traditional property ideas don't fit well with information uses. What would work better? I present what I think is a more useful framework in the book, a view that is so far absent from the law of information. That framework would analyze information uses not under archaic laws of property but would rather weigh the use as being "productive" or "destructive" or both and determine if, on the whole, the net social value created by the use is positive. If so, it should not be treated as illegal, regardless of the law.
What do I mean? Since information can be used simultaneously by everyone and, after use, is still intact if not enhanced by the use, it's really unhelpful to think about information being "stolen" or, in the censorship context, of being "dangerous." Rather, the law should evaluate whether a use adds more value to information than it takes away. Information use that adds value (reviewing a movie) is productive and should be legal. A use that only takes value away (for example, identity theft and other forms of Internet fraud) is destructive and should be illegal. Uses that do both (copyright infringement in the service of promoting the underlying content) should be allowed if the net effect is positive.
Of course, there's nothing really new
about this framework. In fact, with copyright at least, it takes us back to the Constitution -- which clearly set up copyright to "promote the progress of science and the useful arts" (science, really, when talking about copyright). And, thus, the founders intended for it to be judged on the standard of whether or not it "promoted the progress," which meshes nicely with Downes' "productive" use of information that "adds more value to information than it takes away." Unfortunately, over the years, the definitions and regulations around copyright have been taken hostage by those who seek to use it as a pure monopoly right that only benefits them, rather than "promoting the progress." The whole attempt to pretend it's "property" is a result of those efforts. Hopefully using a more reasonable framework will bring us back to a more useful way of dealing with these issues.