Introduction

Recent technological advancements in the reproduction and distribution of intellectual property have presented a serious challenge to intellectual property law. Fortunately, these same advancements suggest a new method by which intellectual property could be sold; an overview of this method, called NetRelease, is given in this article.

NetRelease is not intended as, nor could it serve as, a replacement for existing intellectual property law. It is merely a method by which, in certain circumstances, some of the problems of protecting intellectual property can be side-stepped.

Background

Intellectual property law was conceived with the purpose of encouraging creativity and exploration, and the dissemination of the fruits thereof. A government provides legal protection of these fruits as an enticement to creators and explorers to develop their arts and share their results.

The practical details of this protection were devised to be effective in a world of physical objects: books, mechanical devices, art works, etc. However, these practical details have not proven so effective in the electronic universe called cyberspace.

There are several aspects of cyberspace which frustrate conventional methods of protecting intellectual property. For example, in cyberspace, copies of digitally-representable intellectual property can be made at negligible cost, cannot be distinguished as legitimate or illegitimate, can be instantly sent to thousands of people, and can be instantly destroyed without any trace. The original purpose of intellectual property law is still valid. It is time to develop alternate methods of providing an enticement to creators and explorers--methods appropriate to cyberspace.

The Time Factor

The protection of intellectual property in the world of physical objects has been tailored to a time scale appropriate to the practicalities of reproducing, advertising and distributing physical objects. Patent protection in the United States has a term of seventeen years, a long enough period to allow a person to gather investment capital, build a factory, run a production line, and collect returns sufficient to pay back the investors, pay royalties to the inventor, and turn a profit.

In cyberspace the time scale is much shorter. Digitally-representable intellectual property can be reproduced, advertised and distributed globally in minutes. And the period during which intellectual property can be protected in cyberspace has been similarly reduced: it is zero! Once something is in cyberspace, it cannot be easily controlled.

How NetRelease Works

In NetRelease, the period during which a royalty is paid to the creator is compressed to match the period during which intellectual property can be protected: an instant.

Here's a simple example, a thumbnail sketch of how NetRelease might work.

Let's say you have a book you want to sell. You broadcast an advertisement into cyberspace. People who want to read the book pledge to pay for that privilege. The amount they offer is their own choice. You get these pledges; if their total reaches the amount you're happy with, you release the book into cyberspace. At that instant, two things happen: you collect the money that's been pledged, and you give up all future cyberspace rights to your book. It may henceforth be distributed freely.

Advantages

The "instant royalty" of NetRelease is a great advantage to authors and other creators, who get immediate payment in full. They immediately have funding for their future projects, and don't have to live with the uncertainties of sales, etc. Thus, NetRelease encourages creation.

In the physical world, putting intellectual property in the public domain is not necessarily the best way to assure its dissemination. (For example, a book publisher does not want to compete with a xerox machine -- as it must if a work is not copyrighted -- and publishers are very often responsible for distribution.) But in cyberspace, the best works circulate the most widely and quickly. Thus, NetRelease encourages dissemination.

With NetRelease, less energy is spent trying to enforce copyright laws in cyberspace.

NetRelease "goes with the flow" in that it is improved as the speed and ubiquity of cyberspace increases.

Remarks

Following are some thoughts about implementation, side-effects, etc.

NetRelease could be independent of protection in the physical world. A work could be protected by copyright in the physical world while circulating freely in cyberspace, or vice versa. Or, the two could be tied, in which case NetRelease would also allow anyone to reproduce the work in the physical world.

NetRelease need not replace conventional intellectual property law. It requires some legal support: the law would need to recognize that distribution in cyberspace was distinct from reproduction and distribution in the physical world. Generally, though, NetRelease removes the issue of enforcement in cyberspace.

Reputation would have a lot to do with the amount of pledges that a NetRelease would generate. If you'd read and liked the works of an author, you'd spend more to read more; if a software firm's version 1.0 was good, you'd spend more to get a version 2.0 that promised the features you want. The advertising function of publishers might be subsumed by agents. An unknown author would submit a work to an agent, who would then promote the work. The reputation of the agent would in this case be more important than the reputation of the author.

Software companies using NetRelease could continue to provide services and physical products (manuals, etc.) in the conventional manner.

NetRelease may only become practical when cyberspace gets bigger, and people develop tools for handling the details: cyberspace advertising, pledge collection, etc. Still, there'd be nothing to prevent it from starting small; a person could post a NetRelease advertisement to a listserv or newsgroup and solicit pledges by mail.

A software company could release outdated versions of its product via NetRelease while keeping the current version under protection of physical world copyright.

There are many possible methods by which payment for a NetRelease could be collected. It could be done through an existing mechanism (like by credit card or through 900 number), or a new type of brokerage could be established for managing such accounts.

by Stephen Malinowski

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