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 – and make 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 pirated 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. Let justice be done, though the sky fall.
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 to continue to do what we have been doing but how best to achieve our objectives under new circumstances.
Insofar as this book has a theme, that is it.
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 CD-R drive can copy a $400 program onto a one-dollar CD. 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.1
That could be changed. If we wanted to enforce present law badly enough, we could do it. 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, 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 have fallen 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 CDs 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 this 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 that 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.2
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.
2. Control only large-scale copying.
Anyone with a video recorder, some additional hardware, and a little expertise can copy videos for his friends.3 Nonetheless, video rental stores remain in business. They inexpensively provide their customers with a much larger selection than they could get by copying their friends’ cassettes. The stores themselves cannot safely violate copyright law, buying one cassette for 100 outlets, because they are large, visible organizations. So producers of movies continue to get revenue from videocassettes 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 MP3s 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. The situation is similar for computer programs. As long as copyright law can be used to prevent large-scale piracy, customers are 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.4
A century ago, prominent authors got a good deal of their income from public lectures. Judging by the quote from Buckley – and my own experience – some still do. This 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 four books and numerous articles on my web page, for free – and receive a wide range of benefits, monetary and nonmonetary, 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 were at one time provided. Netscape gave away Navigator and sold the server software that Navigator interacted with; Microsoft followed a similar strategy. Apple provided a competing browser – which was (and is) available for free, but only ran on Apple computers. Currently a variety of other browsers are open source, an approach to creating software discussed in a later chapter. 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 otherwise 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.
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 (ISP) 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 more than 100,000 groups. Each is a collection of conversations spread around the world – a tiny nongeographical community united, and often divided, by common interests.
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 100,000 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 12.0, that automatically showed backlinks, 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.5 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 backlink option turned on will be led to my rebuttal.6
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 backlinks 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 backlinks 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.7 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 protect a site from other people free riding on its content would also provide protection to someone who wants to spread lies online.
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 us 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, although 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 extranuclear 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 either was related to the child or had intended to parent it.
The court that finally decided the issue held 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.8 They thus substituted for a 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. v. Luanne H. B. (72 Cal. Rptr. 2d 280 (Ct. App. 1998)).9
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.10
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 you are cured 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 Life Extension 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,11 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 weatherman says the temperature is seventy degrees in the shade, just which square inch of shade is he referring to? 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. Although 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, 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 could have happened 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 or her 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.12 Since the only way a man could be reasonably confident that he was the father of a particular child was for the child’s 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.
Over the past few centuries two things have sharply altered the facts that led to those institutions. One was 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.13
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.14
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,15 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 toward – 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. 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, hardwired by evolution as a way of improving the odds that the children a male supports carry his genes?16 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, suitable for higher stakes transactions, by which modern information technology can use reputational enforcement to substitute for legal enforcement.
BRAKES? WHAT BRAKES?
When considering the downside of technologies – Murder Incorporated in a world of strong privacy or some future James Bond villain using nanotechnology to convert the entire world to gray goo – your reaction may be “Stop the train, I want to get off!” In most cases, that is not an option. This particular train is not equipped with brakes.
Most of the technologies we are discussing can be developed locally and used globally. Once one country has a functional nanotechnology, permitting it to build products vastly superior to those made with old technologies, there will be enormous pressure on other countries to follow suit. It is hard to sell glass windshields when the competition is using structural diamond. It is even harder to persuade cancer patients to be satisfied with radiation therapy when they know that, elsewhere in the world, microscopic cell repair machines are available that simply go through your body and fix whatever is wrong.
For an example already played out, consider surrogacy contracts – agreements by which a woman bears a child, either from her own or another woman’s egg, for another couple to rear as their own. The Baby M case established that such contracts are not enforceable, at least in New Jersey. State legislation followed, with the result that in four states merely signing such a contract is a criminal act and in one, Michigan, arranging a surrogacy contract is a felony punishable by up to five years and $50,000.
None of this mattered very much. Someone who could afford the costs of hiring a surrogate mother, still more someone who could afford the cost necessary to arrange for one mother to incubate another’s egg, could almost certainly afford the additional cost of doing it in a friendly state. As long as there was one state that approved of such arrangements, the disapproval of others had little effect. And even if the contracts were legally unenforceable, it was only a matter of time before people in the business of arranging them learned to identify and avoid potential surrogate mothers likely to change their mind after the child was born.17
Or consider research into the causes of aging. Many people believe (I think mistakenly) that the world suffers from serious problems of overpopulation. Others argue (somewhat more plausibly) that a world without aging would risk political gerontocracy and cultural stasis.18 Many would – some do – argue that even if the problem of aging can be solved, it ought not to be.
That argument becomes less convincing the older you get. Old people control large resources, both economic and political. Although arguments against aging research may win out somewhere, they are unlikely to win out everywhere – and the cure only has to be found once.
For a more disturbing example, consider artificial intelligence – a technology that might well make human beings obsolete. At each stage, doing it a little better means being better able to design products, predict stock movements, win wars. That almost guarantees that at each stage, someone will take the next step.
Even if it is possible to block or restrict a potentially dangerous technology, as in a few cases it may be, it is not clear that we should do it. We might discover that we had missed the disease and banned the cure. If an international covenant backed by overwhelming military power succeeds in restricting nanotechnological development to government-approved labs, that might save us from catastrophe. But since government-approved labs are the ones most likely to be working on military applications of new technology, while private labs mostly try to produce what individual customers want, the effect might also be to prevent the private development of nanotechnological countermeasures to government-developed mass destruction. Or it might turn out that our restrictions had slowed the development of nanotechnology by enough to leave us unable to defend against the result of a different technology – a genetically engineered plague, for example.
There are legitimate arguments for trying to slow or prevent some of these technological developments. Those arguments will be made,19 but not here. For my purposes, it is more interesting to assume that such attempts, if made, will fail, and try to think through the consequences – how new technologies will change things, how human beings will and should adapt to those changes.
Technological progress means learning more about how to do things; on the face of it, one would expect that to result in an improvement in human life. So far, with few or no exceptions, it has. Despite a multitude of dire prophecies over the past two centuries, human life almost everywhere is better today than it was 50 years ago, better 50 years ago than 100 years ago, and better 100 years ago than 200 years ago.20
Past experience is not always a reliable guide to the future. Despite the progress of the past 200 years, quite a number of people continue to predict future catastrophe from present progress – including a few sufficiently well informed and competent to be worth taking seriously. In my final chapter, I will return to the question of whether, how, and under what circumstances they might be right.
1 Unless two of them are being used on the same network; some versions of Office refuse to run if they can see another copy with the same serial number.
2 Vault Corp. v Quaid Software Ltd, United States Court of Appeals, Fifth Circuit, 1988 847 F.2d 255, at http:// cyber.law.harvard.edu/ilaw/Contract/vault.htm.
3 VCRs incorporate circuitry to detect 'Macrovision' signals. These signals are included on pre-recorded video cassettes (for the technically oriented, they place pulsating stepped square waves in the video blanking intervals). When a VCR detects the macrovision signal coming in on its input, it interferes with recording, most commonly by randomly varying the brightness level of the picture to make for an unpleasant viewing experience.
Macrovision can be overcome, but only at additional expense, usually by 'cleaning' the video signal with a euphemistically entitled 'video enhancer'. So the casual user cannot copy videos. The enthusiast can. [From a commenter on the webbed version of the book]
4 Buckley, 2000, pp. xxii–xxiii.
5 You can get that information already by using Google to search for pages that link to a particular page. That is possible because Google has already indexed the entire web and so has a complete list of links – readable from either end. A back-link browser would use such an index to locate back-links to display. One current project along those lines is Crit .
6 Such a system already exists in a very early form – the “trackback” system used by bloggers. Currently trackbacks are voluntary on the linked-to side, but if browsers polled the trackback servers themselves, they could display the links in a sidebar, without requiring any action by the linked-to site.
8 Johnson v. Calvert (1993) 5 Cal.4th 84, 94-95, 19 Cal.Rptr.2d 494, 851 P.2d 776 (in support of intent based parentage). (Shultz 1990)
10 I am told that an even more complicated version of this dilemma is part of the plot of The Golden Age, The Pheonix Exultant and The Golden_Transcendance by John C. Wright.
11 Donaldson v. Van de Kamp, 4 Cal. Rptr. 2d 59 (Cal. Ct. App. 1992); see Miles Corwin, “Tumor Victim Loses Bid to Freeze Head Before Death,” L.A. Times, Sept. 15, 1990, at A28; Cynthia Gorney, “Cryonics and Suicide: Avoiding 'the Slippery Slope,' “ Washington Post, May 1, 1990, at D6.
12 Some excerpts
from Dawkins The Selfish Gene,
my favorite source on evolutionary biology, are available
online, as well as an introduction
to the subject that seems to have originated on the Usenet group
talk.origins. There is also an online
version of The
Adapted Mind, the book that got me interested in
14 “Let us accept the idea that women should stick to their own jobs – the jobs they did so well in the good old days before they started talking about votes and women’s rights. … It is a formidable list of jobs: The whole of the spinning industry, the whole of the dying industry, the whole of the weaving industry. The whole catering industry and – what would not please Lady Astor, perhaps – the whole of the nation’s brewing and distilling. All the preserving, pickling, and bottling industry, all the bacon-curing. And (since in those days a man was often absent from whom for months together on war or business) a very large share in the management of landed estates. Here are the women’s jobs … .” Dorothy Sayers (1947, p. 133).
15 “An English Padlock” by Mathew Prior is a verse argument for companionate marriage as a solution to this problem. The poet runs through all of the precautions by which a jealous husband can try to keep his wife faithful and the ways in which a wife can, if she wishes, defeat all of them, and concludes, “Let all her ways be unconfined/And clap your padlock on her mind.”
16 I limit myself to male sexual jealousy not because female sexual jealousy does not exist but because the relevant technology has not changed – a woman’s knowledge that a child is hers never depended on knowing whether its father had been sleeping with other women.
17 Silver, 1998, pp. 172–177.
20 Quite a lot of evidence against
the thesis that things have been getting worse in recent
decadeshas been provided by Julian Simon. Two good,
although somewhat old, sources on the effect of the industrial
revolution, sometimes claimed as an example of decline in human
life, are Hayek et. al. 1954, and Ashton 1961. Readers who are more familiar
than I am with the more recent literature are invited to email
It has, however, been argued that the invention of agriculture may have made people worse off; the new technology could support much denser population, which tended to displace the competing hunter-gatherers, but did it with a less attractive lifestyle. (Diamond, 1987, pp. 64–66).