Future Imperfect
By
David D. Friedman
This book is dedicated to
Eric Drexler
Tim May
Eric Raymond
Verner Vinge
And all the other friends whose ideas
I have shamelessly, but selectively, appropriated.
Part I: Prolog
Chapter I: Introduction
I recently attended an event where the guest speaker was a
cabinet member. In conversation afterwards, the subject of long term petroleum
supplies came up. He warned that at some point, perhaps a century or so in the
future, someone would put his key in his car's ignition, turn it, and nothing
would happen–because there would be no more gasoline.
What shocked me was not his ignorance of the economics of
depletable resources--if we ever run out of gasoline it will be a long slow
process of steadily rising prices, not a sudden surprise--but the astonishing
conservatism of his view of the future. It was as if a similar official, a
hundred years earlier, had warned that sometime around the year 2000 we were
going to open the door of the carriage house only to find that the horses had
starved to death for want of hay. I do not know what the world will be like a
century hence. But it is not likely to be a place where the process of getting
from here to there begins by putting a key in an ignition, turning it, and
starting an internal combustion engine burning gasoline.
This book is about technological change, its consequences
and how to deal with them. In this chapter I briefly survey the technologies.
In the next I discuss how to adjust our lives and institutions to their
consequences.
I am not a prophet; any one of the technologies I discuss
may turn out to be a wet firecracker. It only takes one that does not to remake
the world. Looking at some candidates will make us a little better prepared if
one of those revolutions happens. Perhaps more important, after we have thought
about how to adapt to any of ten possible revolutions, we will at least have a
head start when the eleventh drops on us out of the blue.
Much of the book grew out of a seminar I teach at the law
school of Santa Clara University. Each Thursday we discuss a technology that I
am willing to argue, at least for a week, will revolutionize the world. On
Sunday students email me legal issues that revolution will raise, to be put on
the class web page for other students to read. Tuesday we discuss the issues
and how to deal with them. Next Thursday a new technology and a new revolution.
Nanotech has just turned the world into gray goo; it must be March.
Since the book was conceived in a law school, many of my
examples deal with the problem of adapting legal institutions to new
technology. But that is accident, not essence. The technologies that require
changes in our legal rules will affect not only law but marriage, parenting,
political institutions, businesses, life, death and much else.
Possible Futures
We start with three technologies relevant to privacy–one
that radically increases it, two that radically decrease it.
Privacy x 3 or
Now You Have It, Now
You Don't
Public Key encryption makes possible untraceable
communications intelligible only to the intended recipient. My digital
signature demonstrates that I am the same online persona you dealt with
yesterday and your colleague dealt with last year, with no need for either of you
to know such irrelevant details as age, sex, or what continent I am living on.
The combination of computer networking and public key encryption makes possible
a level of privacy humans have never known, an online world where people have
both identity and anonymity–simultaneously. One implication is free speech
protected by the laws of mathematics, arguably more reliable and certainly with
broader jurisdiction than the Supreme Court. Another is the possibility of
criminal enterprises with brand name reputation–online pirate archives selling
other people's intellectual property for a penny on the dollar, temp agencies
renting out the services of forgers and hit men.
On the other hand …
In the not too distant future you may be able to buy an
inexpensive video camera with the size and aerodynamic characteristics of a
mosquito. Even earlier, we will see–are already seeing–the proliferation of
cameras on lamp posts designed to deter crime. Ultimately this could lead to a
society where nothing is private. Science fiction writer David Brin has argued
that the best solution available will be not privacy but universal
transparency–a world where everyone can watch everyone else. The police are
watching you–but someone is watching them.
It used to be that a city was more private than a village,
not because nobody could see what you were doing but because nobody could keep
track of what everybody was doing. That sort of privacy cannot survive modern
data processing. The computer on which I am writing these words has sufficient
storage capacity to hold at least a modest amount of information about every
human being in the U.S. and enough processing power to quickly locate any one
of those by name or characteristics. From that fact arises the issue of who has
what rights with regard to information about me presently in the hands, and
minds, of other people.
Put all of these technologies together and we may end up
with a world where your realspace identity is entirely public, with everything
about you known and readily accessible, while your cyberspace activities, and
information about them, are entirely private--with you in control of the link
between your cyberspace persona and your realspace identity.
Commerce in Cyberspace
The world that encryption and networking creates requires a
way of making payments–ideally without having to reveal the identity of payer
or payee. The solution, already worked out in theory but not yet fully
implemented, is ecash–electronic money, privately produced, potentially
untraceable. One minor implication is that money laundering laws become
unenforceable, since large sums can be transferred by simply sending the
recipient an email.
A world of strong privacy requires some way of enforcing
agreements; how do you sue someone for breach of contract when you have no idea
who, what or where (s)he is? That and related problems lead us to a legal
technology in which legal rules are privately created and enforced by
reputational sanctions. It is an ancient technology, going back at least to the
privately enforced Lex Mercantoria from
which modern commercial law evolved.[1]
But for most modern readers, including most lawyers and law professors, it will
be new.
Property online is largely intellectual property, which
raises the problem of how to protect it in a world where copyright law is
becoming unenforceable. One possibility is to substitute technological for
legal protection. A song or database comes inside a piece of
software–Intertrust calls it a digibox–that regulates its use. To play the song
or query the database costs ten cents of ecash, instantly transmitted over the
net to the copyright owner.
Finally and perhaps most radically, a world of fast, cheap,
communication greatly facilitates decentralized approaches to production. One
possible result is to shift substantial amounts of human effort out of the
context of hierarchically organized corporations into some mix of marketplace
coordination of individuals or small firms and the sort of voluntary
cooperation, without explicit markets, of which open source software
development is a recent and striking example.
Crime, Cops and Computers
Some technologies make the job of law enforcement harder.
Others make it easier–even too easy. A few years ago, when the FBI was pushing
the digital wiretap bill[2] through Congress, critics pointed out
that the capacity they were demanding the phone companies provide them added up
to the ability to tap more than a million telephones–simultaneously.
We still do not know if they intend to do it, but it is
becoming increasingly clear that if they want to, they can. The major cost of a
wiretap is labor. As software designed to let people dictate to their computers
gets better, that someone can be a computer converting conversation to text,
searching the text for key words or phrases, and reporting the occasional hit
to a human being. Computers work cheap.
In addition to providing police new tools for enforcing the
law, computers also raise numerous problems for both defining and preventing
crimes. Consider the question of how the law should classify a "computer
break-in"–which consists, not of anyone actually breaking into anything,
but of one computer sending messages to another and getting messages in reply.
Or consider the potential for applying the classical salami technique–stealing
a very small amount of money from each of a very large number of people–in a
world where tens of millions of people linked to the internet have software on
their computers designed to pay bills online.
Designer Kids, Long Life and Corpsicles
The technologies in our next cluster are biological.
Two–paternity testing and in vitro fertilization–have already abolished several
of the facts on which the past thousand years of family law are based. It is no
longer only a wise child who knows his father–any child can do it, given access
to tissue samples and a decent lab. And it is no longer the case that the woman
from whose body an infant is born is necessarily its mother. The law has begun to adjust. One
interesting question that remains is to what degree we will restructure our
mating patterns to take advantage of changes in the technology of producing
babies.
A little further into the future are technologies to give us
control over our children's genetic heritage. My favorite is the libertarian
eugenics sketched decades ago by science fiction author Robert
Heinlein–technologies that permit each couple to choose, from among the
children they might have, which ones they do have, selecting the egg that does
not carry the mother's tendency to nearsightedness to combine with the sperm
that does not carry the father's heritage of a bad heart. Run that process
through five or ten generations, with a fair fraction of the population
participating, and you get a substantial change in the human gene pool. Alternatively,
if we learn enough to do real genetic engineering, we can forget about the wait
and do the whole job in one generation.
Skip next from the beginning of life to the end. Given the
rate of progress in biological knowledge over the past century, there is no
reason to assume that the problem of aging will remain insoluble. Since the
payoff is not only enormously large but goes most immediately to the currently
old, some of whom are also rich and powerful, if it can be solved it is likely
that it will be.
In a sense it already has been. There are currently more
than a hundred people[3]
whose bodies are not growing older–because they are frozen, held at the
temperature of liquid nitrogen. All are legally dead. But their hope in
arranging their current status was that it would not be permanent–that with
sufficient medical progress it will some day be possible to revive them. If it
begins to look as though they are going to win their bet, we will have to think
seriously about adapting laws and institutions to a world where there is an
intermediate state between alive and dead and quite a lot of people are in it.
The Real Science Fiction
Finally we come to three technologies whose effects, if they
occur, are sufficiently extreme that all bets are off, with both the extinction
and the radical alteration of our species real possibilities within the
lifespan of most of the people reading this book.
One such is nanotechnology–the ability to engineer objects
at the atomic scale, to build machines whose parts are single atoms. That is
the way living things are engineered: A DNA strand or an enzyme is a molecular
machine. If we get good enough at working with very small objects to do it
ourselves, possibilities range from microscopic cell repair machines that go through
a human body fixing everything that is wrong to microscopic self-replicating
creatures dedicated to turning the entire world into copies of themselves–known
in nanocircles as the "gray goo" scenario.
Artificial intelligence might beat nanotech in the annihilation
stakes–or in making heaven on earth. Raymond Kurzweil, a well informed computer
insider, estimates that in about thirty years there will be programmed
computers with human level intelligence. At first glance that suggests a world
of science fiction robots–if we are lucky, obeying us and doing the dirty work.
But if in thirty years computers are as smart as we are and if current rates of
improvement–for computers but not for humans–continue, that means that in forty
years we will be sharing the planet with beings at least as much smarter than
we are as we are smarter than chimpanzees.[4]
Kurzweil's solution is for us to get smarter too–to learn to do part of our
thinking in silicon. That could give us a very strange world–populated by
humans, human/machine combinations, machines programmed with the contents of a
human mind that think they are that human, machines that have evolved their own
intelligence, and much else.
The final technology is virtual reality. Present versions
use the brute force approach: feed images through goggles and headphones to
eyes and ears. But if we can crack the dreaming problem, figure out how our
nervous system encodes the data that reaches our minds as sensory perceptions,
goggles and headphones will no longer be necessary. Plug a cable into a socket
at the back of your neck for full sense perception of a reality observed by
mechanical sensors, generated by a computer, or recorded from another brain.
The immediate payoff is that the blind will see–through
video cameras–and the deaf hear. The longer run may be a world where most of
the important stuff consists of signals moving from one brain to another over a
network, with physical acts by physical bodies playing only a minor role. To
visit a friend in England there is no need to move either his body or
mine–being there is as easy as dialing the phone. That is one of many reasons
why I do not expect gasoline powered automobiles to play a major role in
transportation a century from now.
A few pages back, we were considering a world where
realspace was entirely public, cyberspace entirely private. As things presently
are, that would be a very public world, since most of us live most of our lives
in realspace. But if deep VR reverses the ratio, giving us a world where all the
interesting stuff happens in cyberspace and realspace activity consist of
little more than keeping our bodies alive, it will be a very private world.
Having labeled the section science fiction, I could not
resist adding a chapter on ways in which current and near future technologies
may make possible the old sf dream--space travel, space habitats, in time,
perhaps, the stars.
Alternatives
Any of the futures I have just sketched might happen, but
not all. If nanotech turns the world into gray goo in 2030, it will also turn
into gray goo the computers on which artificial super intelligences would have
been developed in 2040. If nanotech bogs down and A.I. does not, the programmed
computers that rule the world of 2040 may be more interested in their own views
of how the human species should evolve than in our view of what sort of
children we want to have. And, closer to home, if strong private encryption is
built into our communication systems, with the encryption and decryption under
the control not of the network but of the individuals communicating with each
other–the National Security Agency's nightmare for the past twenty years or
so–it won't matter how many telephone lines the FBI can tap.
That is one reason this book is not prophecy. I expect parts
of what I describe to happen but I do not know which parts. My purpose is not
to predict which future we will get but to use possible futures to think about
how technological change will affect us and how we can and should change our
lives and institutions to adapt to it.
That is also one reason why, with a few exceptions, I have
limited my discussion of the future to the next thirty years or so. Thirty
years is roughly the point at which both A.I. and nanotech begin to matter. It
is also long enough to permit technologies that have not yet attracted my
attention to start to play an important role. Beyond that my crystal ball,
badly blurred at best, becomes useless; the further future dissolves into
mist.
Chapter II
Living With Change
New technologies change what we can do. Sometimes they make
what we want to do easier. After writing a book with a word processor, one
wonders how it was ever done without one. Sometimes they make what someone else
is doing easier–making it harder for us to prevent him from doing it. Enforcing
copyright law became more difficult when photo typesetting made the cost of
producing a pirate edition lower than the cost of the authorized edition it
competed with, and more difficult again when inexpensive copying put the tools
of piracy in the hands of any college professor in search of reading material
for his students. As microphones and video cameras become smaller and cheaper,
preventing other people from spying on me becomes harder.
The obvious response is to try to keep doing what we have
been doing. If that is easier; good. If it is harder, too bad. The world must
go on, the law must be enforced.
"Damn the torpedoes, full speed ahead."
Obvious–and wrong. The laws we have, the ways we do things,
are not handed down from heaven on tablets of stone. They are human
contrivances, solutions to particular problems, ways of accomplishing
particular ends. If technological change makes a law hard to enforce, the best
solution is sometimes to stop enforcing it. There may be other ways of accomplishing
the same end–including some enabled by the same technological change. The
question is not "how do we continue to do what we have been doing"
but "how do we best achieve our objectives under new circumstances?"
Insofar as this book has a theme, that is it. "Full
speed ahead; damn the torpedoes" is the wrong answer.
A Simple Example: The Death of Copyright
Copyright law gives the author of a copyrightable work the
right to control who copies it. If copying a book requires an expensive
printing plant operating on a large scale, that right is reasonably easy to
enforce. If every reader owns equipment that can make a perfect copy of a book
at negligible cost, enforcing the law becomes very nearly impossible.
So far as printed material is concerned, copyright law has
become less enforceable over the past century, but not yet unenforceable. The
copying machines most of us have access to can reproduce a book, but the cost
is comparable to the cost of buying the book and the quality worse. Copyright
law in printed works can still be enforced, even if less easily than in the
past.
The same is not true for intellectual property in digital
form. Anyone with a computer equipped with a floppy drive can copy a hundred
dollar program onto a one dollar floppy. Anyone with a CDR drive can copy a
four hundred dollar program onto a one dollar CD. And anyone with a reasonably
fast internet connection can copy anything available online, anywhere in the
world, to his hard drive.
Under those circumstances, enforcing copyright law against
individual users is very nearly impossible. If my university decides to save on
its software budget by buying one copy of Microsoft Office and making lots of
copies, a discontented employee with Bill Gates' email address could get us in
a lot of trouble. But if I choose to provide copies to my wife and
children–which under Microsoft's license I am not permitted to do–or even to a
dozen of my friends, there is in practice little that Microsoft can do about
it.[5]
That could be changed. If we wanted to enforce present law
badly enough, we could do it–with suitable revisions on the enforcement end.
Every computer in the country would be subject to random search. Anyone found
with an unlicensed copy of software would go straight to jail. Silicon valley
would empty and the prisons would fill with geeks, teenagers, and children.
Nobody regards that as a tolerable solution to the problem.
Although there has been some shift recently in the direction of expanded
criminal liability for copyright infringement,[6]
software companies for the most part take it for granted that they cannot use
the law to prevent individual copying of their programs and so fall back on
other ways of getting rewarded for their efforts.
Holders of music copyrights face similar problems. As
ownership of tape recorders became common, piracy became easier. Shifting to
CD's temporarily restored the balance, since they provided higher quality than
tape and were expensive to copy–but then cheap CD recorders and digital audio
tape came along. Most recently, as computer networks have gotten faster,
storage cheaper, and digital compression more efficient, the threat has been
from online distribution of MP3 files encoding copyrighted songs.
Faced with the inability to enforce copyright law against
individuals, what are copyright holders to do? There are at least three
answers:
1. Substitute technological protection for legal protection.
In the early days of home computers, some companies sold
their programs on disks designed to be uncopyable. Consumers found that
inconvenient, either because they wanted to make copies for their friends or
because they wanted to make backup copies for themselves. So other software
companies sold programs designed to copy the copy protected disks. One company
produced a program–SuperUtility Plus–designed to do a variety of useful things,
including copying other companies' protected disks. It was itself copy
protected. So another company produced a program–SuperDuper–whose sole function
in life was to make copies of SuperUtility Plus.
Technological protection continues in a variety of forms.
All face a common problem. It is fairly easy to provide protection sufficient
to keep the average user from using software in ways in which the producer does
not want him to use it. It is very hard to provide protection adequate against
an expert. And one of the things experts can do is to make their expertise
available to the average user in the form of software designed to defeat
protection schemes.
This suggests a possible solution: technological protection
backed up by legal protection against software designed to defeat it. In the
early years, providers of copy protection tried that approach. They sued the
makers of software designed to break the protection, arguing that they were
guilty of contributory infringement (helping other people copy copyrighted
material), direct infringement (copying and modifying the protection software
in the process of learning how to defeat it) and violation of the licensing
terms under which the protection software was sold. They lost.[7]
More recently, owners of intellectual property successfully
supported new legislation–Section 1201 of the Digital Millennium Copyright
Act–which reverses that result, making it illegal to produce or distribute
software whose primary purpose is defeating technological protection. It
remains to be seen whether or not that restriction will itself prove
enforceable.[8]
2. Control only large scale copying:
Anyone with a
video recorder can copy videos for his friends [check
this–how effective is current protection?]. Nonetheless, video rental
stores remain in business. They inexpensively provide their customers with an
enormously larger selection than they could get by copying their friends'
cassettes. The stores themselves cannot safely violate copyright law, buying
one cassette for a hundred outlets, because they are large, visible
organizations. So producers of movies continue to get revenue from video
cassettes, despite the ability of customers to copy them.
There is no practical way for music companies to prevent one
teenager from making copies of a CD or a collection of MP3's for his
friends–but consumers of music are willing to pay for the much wider range of
choice available from a store. The reason Napster threatened the music industry
was that it provided a similar range of choice at a much lower cost. Similarly
for software. As long as copyright law can be used to prevent large scale
piracy, customers will be willing to pay for the convenience provided by a
legal, hence large scale and public, source for their software. In both cases,
the ability of owners of intellectual property to make piracy inconvenient
enough to keep themselves in business is threatened by the internet, which
offers the possibility of large scale public distribution of pirated music and
software.
3. Permit copying; get revenues in other ways:
"Most successful lecturers will
in whispered tones confide to you that there is no other journalistic or
pedagogical activity more remunerative–a point made by Mark Twain and Winston
Churchill."
(William F. Buckley,
Jr.)[9]
A century ago, prominent authors got a good deal of their
income from public lectures. Judging by
the quote from Buckley—and my own observations–some still do. That
suggests that, in a world without enforceable copyright, some authors could
write books, provide them online to anyone who wanted them, and make their
living selling services to their readers–public lectures, consulting services,
or the like. This is not a purely conjectural possibility. Currently I provide
the full text of three books and numerous articles on my web page, for free–and
receive a wide range of benefits, monetary and non-monetary, by doing so.
This is one example of a more general strategy: Give
away the intellectual property and get your income from it indirectly. That is
how both of the leading web browsers are provided. Netscape gives away
Navigator and sells the server software that Navigator interacts with;
Microsoft follows a similar strategy. Apple provides a competing browser--which
is available for free, but only runs on Apple computers. It is also how radio
and television programs pay their bills; give away the program and get revenue
from the ads.
As these examples show, the death of copyright does not mean
the death of intellectual property. It does mean that producers of intellectual
property must find other ways of getting paid for their work. The first step is
recognizing that, in the long run, simply enforcing existing law is not going
to be an option.
Defamation Online: A Less Simple Example
A newspaper publishes an article asserting that I am a
wanted criminal, having masterminded several notorious terrorist attacks.
Colleagues find themselves engaged when I propose going out to dinner. My
department chair assigns me to teach a course on Sunday mornings with an
enrollment of one. I start getting anonymous phone calls. My recourse under
current law is to sue the paper for libel, forcing them to retract their false
claims and compensate me for damage done.
Implicit in the legal solution to defamation are two
assumptions. One is that when someone makes a false statement to enough people
to do serious damage, the victim can identify either the person who made the
statement or someone else responsible for his making it–the newspaper if not
the author. The other is that at least one of the people identified as
responsible will have enough assets to be worth suing.
In the world of twenty years ago, both assumptions were
usually true. The reporter who wrote a defamatory article might be too poor to
be worth suing, but the newspaper that published it was not–and could
reasonably be held responsible for what it printed. It was possible to libel
someone by a mass mailing of anonymous letters, but a lot of trouble to do it
on a large enough scale to matter to most victims.
Neither is true any longer. It is possible, with minimal
ingenuity, to get access to the internet without identifying yourself. With a
little more technical expertise, it is possible to communicate online through
intermediaries–anonymous remailers–in such a way that the message cannot be
linked to the sender. Once online, there are ways to communicate with large
numbers of people at near zero cost: mass email, posts on Usenet news, a page
on the worldwide web. And if you choose to abandon anonymity and spread lies
under your own name, access to the internet is so inexpensive that it is
readily available to people without enough assets to be worth suing.
One possible response is that we must enforce the
law–whatever it takes. If the originator of the defamation is anonymous or
poor, find someone else, somewhere in the chain of causation, who is neither.
In practice, that probably means identifying the internet service provider
through whom the message passed and holding him liable. A web page is hosted on
some machine somewhere; someone owns it. An email came at some point from a
mail server; someone owns that.
That solution makes no more sense than holding the U.S. Post
Office liable for anonymous letters. The publisher of a newspaper can
reasonably be expected to know what is appearing in his pages. But an ISP has
no practical way to monitor the enormous flow of information that passes
through its servers–and if it could, we wouldn't want it to. We can–in the
context of copyright infringement we do–set up procedures under which an ISP
can be required to take down webbed material. But that does no good against a
Usenet post, mass email, webbed defamation hosted in places reluctant to
enforce U.S. law, or defamers willing to go to the trouble of hosting their web
pages on multiple servers, shifting from one to another as necessary.
Defamation law is of very limited use for preventing online defamation.
There is–has always been–another solution to the problem.
When people tell lies about me, I answer them. The technological developments
that make defamation law unenforceable online also make possible superb tools
for answering lies, and thus provide a substitute, arguably a superior
substitute, for legal protection.
My favorite example is Usenet News, a part of the internet
older and less well known than the web. To the user, it looks like a collection
of online bulletin boards, each on a different topic–anarchy, short-wave
radios, architecture, cooking history. When I post a message to a newsgroup,
the message goes to a computer–a news server–provided by my ISP. The next time
that news server talks to another, they exchange messages–and mine spreads
gradually across the world. In an hour, it may be answered by someone in
Finland or Japan. The server I use hosts nearly thirty thousand groups. Each is
a collection of conversations spread around the world–a tiny non-geographical
community united, and often divided, by common interests.[10]
Google, which hosts a popular web search engine, also
provides a search engine for Usenet. Using it I can discover in less than a
minute whether anyone has mentioned my name anywhere in the world any time in
the last three days–or weeks, or years–in any of more than thirty thousand
newsgroups. If I get a hit, one click brings up the message. If I am the David
Friedman mentioned (the process would be easier if my name were Myron
Whirtzlburg), and if the message requires an answer, a few more clicks put my
response in the same thread of the same newsgroup, where almost everyone who
read the original post will see it. It is as if, when anyone slandered me
anywhere in the world, the wind blew his words to me and my answer back to the
ears of everyone who had heard them.
The protection Usenet offers against defamation is not
perfect; a few people who read the original post may miss my reply and more may
choose not to believe it. But the protection offered by the courts is imperfect
too. Most damaging false statements are not important enough to justify the
cost and trouble of a lawsuit. Many that are do not meet the legal requirements
for liability. Given the choice, I prefer Usenet.
Suppose that instead of defaming me on a newsgroup you do it
on a web page. Finding it is easy–Google provides a search engine for the web
too. The problem is how to answer it. I can put up a web page with my answer
and hope that sufficiently interested readers will come across it, but that is
all I can do. The links on your web page are put there by you, not by me–and
you may be reluctant to add one to the page that proves you are lying.
There is a solution to this problem–a technological
solution. Current web browsers show only forward links–links from the page
being read to other pages. It would be possible to build a web browser, say Netscape Navigator 9.0,
that automatically showed back links, letting the user see not only what pages
the author of this page chose to link to but also what pages chose to link to
it.[11]
Once such browsers are in common use, I need only put up a page with a link to
yours. Anyone browsing your page with the back link option turned on will be
led to my rebuttal.
There is a problem with this solution–a legal problem. Your
web page is covered by copyright, which gives you the right to forbid other
people from making either copies or derivative works. A browser that displays
your page as you intended is making a copy, but one to which you have given
implicit authorization by putting your page on the web. A browser that displays
your page with back links added is creating a derivative work–one that you may
not have intended and, arguably, did not authorize. To make sure your lies
cannot be answered, you notify Netscape that they are not authorized to display
your page with back links added.
The issue of when one web page is an unauthorized derivative
work of another is currently being fought out in the context of
"framing"–one web site presenting material from another along with
its own advertising. If my view of online defamation is correct, the outcome of
that litigation may be important to an entirely different set of issues. The
same legal rule–a strong reading of the right to prevent derivative works
online–that would protection a site from other people free riding on its
content would also provide protection to someone who wants to spread lies
online--unanswered.
Unsteady Ground
"My mother was a
test tube, my father was a knife."
Friday, Robert A. Heinlein
Technological changes alter the cost of doing things. But
they may also affect is in a more subtle way–by making obsolete the categories
we use to talk and think about the world around us.
Consider the category of "parent." It used to be
that, while there might be some uncertainty about the identity of a child's
father, there was no question what "father" and "mother"
meant. Laws and social norms specifying the rights and obligations of fathers
and mothers were unambiguous in meaning, if not always in application.
That is no longer the case. With current reproductive
technology there are at least two biological meanings of "mother" and
will soon be a third. A gestational mother is the woman in whose womb a fetus
was incubated. An egg mother is the woman whose fertilized egg became the
fetus. Once human cloning becomes an established technology, a mitochondrial
mother will be the woman whose egg, with its nucleus replaced by the nucleus of
the clone donor but with its own extra-nuclear mitochondrial DNA, developed
into the fetus. And once genetic engineering becomes a mature technology,
permitting us to produce offspring whose DNA is a patchwork from multiple
donors, the concept of "a" biological mother (or father) will be very
nearly meaningless.
The Child With Five Parents
A California couple wanted a child. The husband was sterile.
His wife was doubly sterile–she could neither produce a fertile egg nor bring a
fetus to term. They contracted with a sperm donor, an egg donor, and a
gestational mother. The donated egg was impregnated with the donated sperm and
implanted in the rented womb. Then, before the baby was born, their marriage
broke up, leaving the courts with a puzzle: What person or persons had the
legal rights and obligations of parenthood?
Under California law read literally, the answer was clear.
The mother was the woman from whose body the child was born. The father was her
husband. That was a sensible enough legal rule when the laws were written. But
it made no sense at all in a world where neither that woman nor her husband was
either related to the child or had intended to parent it.
The court that finally decided the issue, like some but not
all other California courts presented with similar conundrums, sensibly ignored
the literal reading of the law, holding that the parents were the couple who
had set the train of events in motion, intending at that time to rear the child
as their own.[12] They thus
substituted for the biological definition that had become technologically
obsolete a social definition–motherhood by neither egg nor womb but by
intention.
This is a true story. If you don't believe me, go to a law
library and look up John A. B. Vs. Luanne H. B (72
Cal. Rptr. 2d 280 (Ct. App. 1998)).[13]
The Living Dead
Consider someone whose body is preserved at the temperature
of liquid nitrogen while awaiting the medical progress needed to revive and
cure him. Legally he is dead; his wife is a widow, his heirs have his estate.
But if he is in fact going to be revived, then in a very real sense he is not
dead–merely sleeping very soundly. Our legal system, more generally our way of
thinking about people, takes no account of the special status of such a person.
There is a category of alive, a category of dead, and–outside of horror movies
and computer games–nothing between them.
The absence of such a category matters. It may, quite
literally, be a matter of life and death.
You are dying of a degenerative disease that will gradually
destroy your brain. If you are cured today, you will be fine. If a year later,
your body may survive but your mind will not. After considering the situation,
you decide that you are more than willing to trade a year of dying for a chance
of getting back your life. You call up the Alcor Foundation and ask them to
arrange to have your body frozen–tomorrow if possible.
They reply that while they agree with your decision they
cannot help you. As long as you are legally alive, freezing you is legally
murder. You will simply have to wait another year until you are declared
legally dead–and hope that somehow, some day, medical science will become
capable of reconstructing you from what by that time is left.
This too is, allowing for a little poetic license, a true
story. In Donaldson v. Van de Kamp[14], Thomas Donaldson went to court in an unsuccessful
attempt to get permission to be frozen before, rather than after, his brain was
destroyed by a cancerous tumor.
The issues raised by these cases–the meaning of parenthood
and of death–will be discussed at greater length in later chapters. Their
function here is to illustrate the way in which technological change alters the
conceptual ground under our feet.
All of us deal with the world in terms of approximations. We
describe someone as tall or short, kind or cruel, knowing that the former is a
matter of degree and the latter both of degree and of multiple dimensions. We
think of the weather report as true, although it is quite unlikely that it
provides a perfectly accurate description of the weather, or even that such a
description is possible–when the weather man says the temperature is 70 degrees
in the shade, just which square inch of shade is he referring to? And we
classify a novel as "fiction"
and this book as "nonfiction," although quite a lot of the
statements in the former are true and some in the latter are false.
Dealing with the world in this way works because the world
is not a random assemblage of objects–there is pattern to it. Temperature
varies from one patch of shade to another, but not by very much; while a
statement about "the" temperature in the shade may not be precisely
true, we rarely lose much by treating it as if it were. Similarly for the other
useful simplifications of reality that make possible both thought and
communication.
When the world changes enough, some simplifications cease to
be useful. It was always true that there was a continuum between life and
death; the exact point at which someone is declared legally dead is arbitrary.
But, with rare exceptions,[15]
it was arbitrary to within seconds, perhaps minutes–which almost never
mattered. When it is known that, for a large number of people, the ambiguity
not only exists but will exist for decades, the simplification is no longer
useful. It may, as in the case of Thomas Donaldson, become lethal.
It's Not Just Law, It's Life
So far my examples have focused on how legal rules should respond to
technological change. But similar issues arise for each of us in living his own
life in a changing world. Consider, for a story now in part played out, the
relations between men and women.
The Decline of Marriage
For a very long time, human societies have been based on
variants of the sexual division of labor. All started with a common
constraint–women bear and suckle children, men do not. For hunter gatherers,
that meant that the men were the hunters and the women, kept relatively close
to camp by the need to care for their children, the gatherers. In more advanced
societies, that became, with many variations, a pattern where women specialized
in household production and men in production outside the household.
A second constraint was the desire of men to spend their
resources on their own children rather than on the children of other men–a
desire rooted in the fact that Darwinian selection has designed organisms,
including human males, to be good at passing down their own genes to future
generations.[16] Since the
only way a man could be reasonably confident that he was the father of a
particular child was for its mother not to have had sex with other men during
the period when it was conceived, the usual arrangement of human societies,
with a few exceptions, gave men sexual exclusivity. One man might under some
circumstances sleep with more than one woman, but one woman was supposed to,
and most of the time did, sleep with only one man.[17]
Over the past few centuries, two things have sharply altered
the facts that led to those institutions. One is the decline in infant
mortality. In a world where producing two or three adult children required a
woman to spend most of her fertile years bearing and nursing, the sexual
division of labor was sharp–one profession, "mother," absorbed close
to half the labor force. In today's world, a woman need bear only two babies in
order to end up with two adult children.[18]
A second change, the increased division of labor, has
drastically reduced the importance of household production. You may still wash
your own clothes, but most of the work was done by the people who built the
washing machine. You may still cook your own dinner, but you are unlikely to
cure your own ham or make your own soap. That change eliminated a good deal of what
wives traditionally did, freeing women for other activities.[19]
As being a wife and mother went from a full to a part time
job, human institutions adjusted. Market employment of women increased. Divorce
became more common. The sexual division of labor, while it still exists, is
much less sharp–many women do jobs that used to be done almost exclusively by
men, some men do jobs that used to be done almost exclusively by women.
The Future of Marriage
One consequence of married women working largely outside of
the home is to make the enforcement of sexual exclusivity, never easy,[20]
very nearly impossible. Modern societies developed a social
alternative--companionate marriage. A wife who is your best friend instead of
your subordinate or slave is less likely to want to cheat on you--a good thing
if you have no practical way of stopping her. Modern society also produced,
somewhat later, a technological alternative: Paternity testing. It is now
possible for a husband to know whether his wife's children are his even if he
is not confident that he is her only sexual partner.
This raises some interesting possibilities. We could
have–are perhaps moving towards–a variant of conventional marriage institutions
in which paternal obligations are determined by biology, not marital status. We
could have a society with group marriages but individual parental
responsibilities, since a woman would know which of her multiple husbands had
fathered any particular child. We could have a society with casual sex but well
defined parental obligations–although that raises some practical problems,
since it is much easier for a couple to share parental duties if they are also
living together, and the fact that two people enjoy sleeping together is
inadequate evidence that they will enjoy living together.
All of these mating patterns exist already–for a partial
sample, see the Usenet newsgroup alt.polyamory. Whether any become common will
depend in large part on the nature of male sexual jealousy. Is it primarily a
learned pattern, designed to satisfy an instinctual preference for one's own
children? Or is it itself instinctual–hard wired by evolution as a way of
improving the odds that the children a male supports carry his genes?[21]
If the former, then once the existence of paternity testing makes jealousy
obsolete we can expect its manifestations to vanish, permitting a variety of
new mating patterns. If the latter, jealousy is still obsolete but, given the
slow pace of evolutionary change, that fact will be irrelevant to behavior for
a very long time, hence we can expect to continue with some variant of
monogamy, or at least serial polygamy, as the norm.
The basic principle here is the same as in earlier examples
of adjustment to technological change. Our objective is not to save marriage.
It is to accomplish the purposes that marriage evolved to serve. One way is to
continue the old pattern even though it has become more difficult–as
exemplified by the movement for giving couples the option of covenant marriage,
marriage on something more like the old terms of "till death do us
part." Another is to take advantage of technological change to accomplish
the old objective–producing and bringing up children–in new ways.
Doing Business Online
Technology affects law and love. Also business. Consider the
problem of contract enforcement.
Litigation has always been a clumsy and costly way of
enforcing contractual obligations. It is possible to sue someone in another
state, even another country–but the more distant the jurisdiction, the harder
it is. If online commerce eventually dispenses with not only geography but real
world identity, so that much of it occurs between parties linked only to an
identity defined by a digital signature, enforcing contracts in the courts
becomes harder still. It is difficult to sue someone if you do not know who he
is.
There is an old solution–reputation. Just as in the case of
defamation, the same technology that makes litigation less practical makes the
private substitute more practical.
Ebay provides a low tech example. When you win an auction and take delivery of the goods, you are given an opportunity to report on the result–did the seller deliver when and as scheduled, were the goods as described? The reports on all past auctions by a given seller are available, both in full and in summary form, to anyone who might want to bid on that seller's present auctions. In a later chapter we will consider more elaborate mechanisms,