Law in the Internet Society

Ice-Water, Digital Distribution, and Social Costs


"As the self-governing community seeks, by the method of voting, to gain wisdom in action, it can find it only in the minds of its individual citizens. If they fail, it fails."

-- Alexander Meiklejohn

When we were discussing goods reproduced at zero marginal cost two serious objections were raised. The first was that the right to control the means of distribution was a major incentive for authors to write. Granting the right to collect rent in exchange for a distribution of the work allows authors to recoup the cost (and maybe more) of the time and effort spent writing. The second objection spoke to the moral right of authors; in order to control the context of their works - how and where they are presented - authors had to be able to control the distribution pipeline.

I support author rights, and recognize the importance of even aesthetic contributions. The most valuable time of my day as a law student are the hours I spend listening to music while I read - it keeps me focused, gives me ideas, and calms me down. A problem we face as we transition to an internet society is ensuring that the authors we read and the musicians we like have enough money so that they will continue devoting most of their time creating works to educate, inspire, and entertain us.

However, if we decide as a society to stay the course so that the way to provide compensation and recognition to authors is to allow them to control and sell their distribution rights absolutely, even when making an additional copy is free, then I think that we owe it to ourselves to recognize the social costs imposed by such a system. This essay will proceed by observing how the distribution right fundamentally alters the distribution properties of works representable in digital form. Taking this observation, it will explore how a system that does not interfere with frictionless distribution could enhance our form of self-government.

Phase Transitions and Charging for Distribution

A useful way of illustrating the cost of rents on distribution is through the concept of phase transitions. A phase transition can generally be thought of as an abrupt change in the behavior of a system at a critical point. In physical science, the most common example of a phase transition is the difference between water molecules at < 0C, ice, and water molecules at > 0C, water. Not limited to physical science, other examples of systems possessing a phase transition include certain NP-Complete problems and certain types of graphs.

The marginal cost of distributing goods also has a phase transition centered around the critical point of zero: goods with marginal cost = 0 have different properties than goods with a marginal cost > 0. Eben put forward a few propositions about the different properties of goods above and below this critical point, and I would like to recall/reemphasize two. First, when marginal cost of reproduction and distribution is equal to zero, goods are less likely to be lost because most of the copies distributed will be controlled by a different entity and freely able to be redistributed. This allows seekers to find the good in many locations, and prevents loss through distributed storage. Second, and more importantly, zero marginal cost allows a copy to easily be distributed to anyone interested, for free.

Allowing rent to be charged for each distribution destroys these properties. When an author charges rent for a physical copy of her book, album, software, or movie it is a mere percentage increase in the marginal cost, with a similar effect on the distribution of the work as giving someone who wanted cold water a glass at 5C instead of 3C. However, when an author charges rent on a digital copy, something that otherwise would have marginal cost zero, the effect on distribution changes dramatically: anyone interested can no longer obtain the work for free, and the good may be lost if the centralized distributor is no longer interested in making it available at any price. In our water analogy this would be like giving someone who wanted to ice skate a pool full of really cold water. It is cold, it is water, but you can't skate on it because it lacks the fundamental properties of ice.

The Social Costs of Charging For Distribution

The fact that these properties are lost by allowing authors to charge rent on distribution has little consequence if we do not think that they are worthwhile to have. However, these properties have the potential to increase the effectiveness of our system of government. When we decided that ours would be a government by the people, we all took on the responsibility of governing, and took an interest in the education and development of ourselves and all of our fellow citizens. Every time we are confronted with a problem in this system the solution must come from us; we are all we have.

The different properties of writings, music, or video which can be distributed at marginal cost zero and those which can not has implications on the behavior of this political system. When authors seek rent through the distribution right, there is an artificial cost applied to reading, watching, or listening. This barrier effects the reach of the works among the citizens, prohibiting access to those who will not or can not pay rent. Writings may even be lost completely to society if an injunction against their distribution is granted on behalf of the right holder. These barriers place constraints on the ability of citizens to develop and educate themselves through digesting works, constraints which could be removed for digital goods with a different mode of artist compensation.

Removing these constrains might achieve a different type of phase transition in our political economy. As Meiklejohn noted in the quote at the beginning of this essay, in self-government wisdom in action can only be found in the minds of individual citizens. If we remove the barriers to development and education for us all, the structure of how our political system behaves will be altered and unexpected solutions may be, and are more likely to be, reached.


I think you've presented a very thoughtful paradigm through which we can view some of the ideas Eben has been presenting to us in class. I'm not sure that I have any comments on the ideas as you present them, but I will offer some literary advice, as it were.

I think your paper would be much, much stronger if you could rework, or indeed, entirely eliminate the first three paragraphs. Your idea is strong enough to stand without so much introduction. It's irrelevant to the reader that you listen to music when you study, and quite frankly, so too are what the class objections to Eben's ideas were, since you don't actually address them explicitly. I think your paper loses some punch by presenting itself as a response to things that happened in class, rather than as ideas that are valuable and important in their own right. A more formal approach would be better. Of course, your paper can and probably should incorporate ideas from class discussion. But you lose some power as a writer communicating to a reader when you rely too heavily, or at least explicitly, on that. If you could drop the first three paragraphs, and instead roadmap more clearly your argument, I think this would be a much stronger work.

On a more substantive note, I'd like to see more information about phase transition. Can you point to other phase transitions in our society? (This is perhaps what I mean by more formal. You could introduce your ideas with something about other phase transitions, given the reader a context that isn't depended on his a) having been in class or b) knowing you as a person).

There's a lot of value here to work with, so some reworking to make sure that value is seen would be a good thing for all of us.

-- DanaDelger - 18 Nov 2009


In your opening section you indicate that there were two objections to free distribution that were raised in class: (1) incentive for creation and; (2) control by authors. The way I read your essay you then primarily set forth some disadvantages of controlled distribution, as well as benefits of free distribution, to society as a whole. I was not satisfied, however, that you addressed the incentive or control issues other than to close by indicating that solutions to those issues may be easily reached if barriers to distribution and education related thereto were removed.

I would suggest that your essay is fine and addresses some valid problems and costs associated with restricted distribution and that part can stand on its own. However, if so, I would alter the opening section so that you do not imply that you are going to address issues of incentive and control; or, alternatively I believe it would be a stronger essay if you do want to address those issues to more fully develop why they are not necessary or how substitutes for restricted distribution to provide for such incentive and control could be accomplished. If your thesis is that incentive and control would be reduced in a free distribution model but the benefits derived from such model would outweigh those costs I would like to see that drawn out a little more clearly as well.

-- BrettJohnson - 22 Nov 2009



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r13 - 22 Nov 2009 - 22:55:08 - BrettJohnson
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