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The Problems That Perfection Makes

The Problems That Perfection Makes

These three examples reveal a common pattern — one that will reach far beyond copyright. At one time we enjoyed a certain kind of liberty. But that liberty was not directly chosen; it was a liberty resulting from the high costs of control[65]. That was the conclusion we drew about fair use — that when the cost of control was high, the space for fair use was great. So too with anonymous reading: We read anonymously in real space not so much because laws protect that right as because the cost of tracking what we read is so great. And it was the same with amateur culture: That flourished free of regulation because regulation could not easily reach it.

When costs of control fall, however, liberty is threatened. That threat requires a choice — do we allow the erosion of an earlier liberty, or do we erect other limits to re-create that original liberty?

The law of intellectual property is the first example of this general point. As the architecture of the Internet changes, it will allow for a greater protection of intellectual property than real-space architectures allowed; this greater protection will force a choice on us that we do not need to make in real space. Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use or a certain space for individual freedom?

Ignoring these questions will not make them go away. Pretending that the framers answered them is no solution either. In this context (and this is just the first) we will need to make a judgment about which values the architecture will protect.

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