An Alternate History of the Web & Copyright Law

I've been enjoying Walter Isaacson's The Innovators, a history of computers and the Internet. As with any book related to innovation, I've been interested in the importance (or non-importance) of patents for different inventors, and in the key role of non-patent government incentives for innovation at different points of computing's history. But the rise of the Internet is of course interesting to IP scholars not only for the technical advance it represented, but also for the effect it had on the copyright markets. So I was particularly struck by a passage about how it all could have turned out differently. Isaacson described a meeting between Tim Berners-Lee, who created the World Wide Web while working at CERN, and Ted Nelson, an earlier hypertext innovator:

Twenty-five years earlier, Nelson had pioneered the concept of a hypertext network with his proposed Xanadu project. It was a pleasant meeting, but Nelson was annoyed that the Web lacked key elements of Xanadu. He believed that a hypertext network should have two-way links, which would require the approval of both the person creating the link and the person whose page was being linked to. Such a system would have the side benefit of enabling micropayments to content producers. "HTML is precisely what we were trying to prevent—ever-breaking links, links going outward only, quotes you can't follow to their origins, no version management, no rights management," Nelson later lamented.

Had Nelson's system of two-way links prevailed, it would have been possible to meter the use of links and allow small automatic payments to accrue to those who produced the content that was used. The entire business of publishing and journalism and blogging would have turned out differently. Producers of digital content could have been compensated in an easy, frictionless manner, permitting a variety of revenue models, including ones that did not depend on being beholden solely to advertisers. Instead the Web became a realm where aggregators could make more money than content producers. Journalists at both big media companies and little blogging sites had fewer options for getting paid. As Jason Lanier, the author of Who Owns the Future?, has argued, "The whole business of using advertising to fund communication on the Internet is inherently self-destructive. If you have universal backlinks, you have a basis for micropayments from somebody's information that's useful to somebody else." But a system of two-way links and micropayments would have required some central coordination and made it hard for the Web to spread wildly, so Berners-Lee resisted the idea.

If Nelson's Xanadu had in fact prevailed, it would likely have been cheered by many copyright scholars. For example, in this 2011 lecture, my colleague Paul Goldstein advocates the ability of transaction-cost innovations such as digital micropayments to change the structure of copyright markets, and bemoans the problem of unlicensed copies:

It is copyright law's encounter with the Internet that compels the thorough housecleaning that I propose today. One reason to start on a clean slate is the Internet's unprecedented capacity to reduce transaction costs and to organize fluent markets for information and entertainment that previously were impracticable; this, the Internet's bright side, will make it possible to erase from the present Copyright Act a century's worth of cumbersome, second-best regulatory solutions to what are essentially market-transaction problems. But the Internet has a dark side, too, embodied in its widely realized capacity for unlicensed, but always perfect, copies and streams of copyrighted works.

There are of course technological reasons why it was Berners-Lee and not Nelson whose vision became widespread—especially if one digs a bit deeper into the history of Xanadu. And there are many details that Isaacson's short blurb doesn't discuss. (If you need permission to link, does that mean you couldn't link to criticize?) But it is an interesting thought experiment to imagine what the world would look like under this alternative two-way linking system Isaacson describes.