I tried to take a crack at it in Laissez Faire City Times http://www.zolatimes.com/V2.16/pageone.html Tim May wrote:
At 7:33 AM -0800 11/19/98, Jim Gillogly wrote: -- all issues of intellectual property are also issues of _enforceability_. To the extent anonymous remailers, information markets, regulatory arbitrage, systems like "BlackNet" ("BlackeBay," anyone?), and other crypto anarchy technologies proliferate, enforcement of any particular nation's intellectual property laws will become problematic.
-- finally, the U.S. position on patentability and copyrightability of software and words is not the only position one may find morally supportable. We do not, for example, allow "ideas" to be patented or copyrighted (I don't mean "expressions of ideas," as in patents, or "precise words," as in copyrights. Rather, I mean that we do not allow a person to "own" an idea. To imagine the alternative, cf. Galambos.)
Long term, I expect current notions about intellectual property will have to change.
I'm a big believer in "technological determinism." For example, in my own view (which I have debated with some well known cyberspace lawyers over the years), the widespread deployment of video cassette recorders (VCRs) necessarily changed the intellectual property laws. The Supreme Court, in Disney v. Sony, uttered a bunch of stuff about time-shifting, blah blah, but the real reason, I think, boiled down to this:
"VCRs have become widespread. If people tape shows in their own homes, even violating copyrighted material, there is no way law enforcement can stop them short of instituting a police state and doing random spot checks. The horse is out of the barn, the genie is out of the bottle. The law has to change. But rather than admit that copyright is no longer practically enforceable, we have to couch our decision in terms of "time-shifting" and other such fig leaves."
So, too, will anonymous remailers, black pipes, information markets, regulatory arbitrage, and suchlike change the nature of intellectual property.
What form these changes will take, I don't know.
--Tim May