Two recent articles, published a day apart, on two seemingly different topics...  One was written by Clay Shirky, an expert on collaboration on the internet... the other written by Bruce Schneier, one of the most respected names in information security.  Shirky wrote about the regulation of media, and Schneier wrote about protecting privacy.  The questions they address in their works are really two sides of the same coin.

At the heart of the matter is information and what can be done with it.  Information enables actions both benign and malign.  Knowing that that an airline is running a discounted fare promotion when planning travel can help save you some money.  Your credit card number, expiration date, and verification number in the hands of a thief can result in the rapid increase in your debt structure.

The widespread availability of broadband networks and affordable data storage has given rise to a situation with data that futurists once predicted with fusion and energy.  Transmission and retention of information is almost too cheap to meter.

Shirky highlights a recent injunction and reversal against wikileaks.org to make a point.  He sums things up by writing:
There is a tension between freedom of speech in general, and restriction of certain kinds of speech; how can society let people say what they like, while still restricting things like libel or publication of trade secrets? And although the law around these issues hasn't changed, the economics of media have been so transformed that the old legal bargains between freedom and restriction are breaking, and we have no easy way of replacing them.
Shirky rightly notes that many of the assumptions that gave rise to social contracts like copyright and trade secret law no longer apply, and he doesn't see any easy resolutions to the problem.

Schneier looks at the flipside of the issue, criticizing the notion of a "Transparent Society", which might be summed up as  "Fine, we'll let Big Brother watch us as long as we get the same ability to watch him."  Schneier bases his argument on the idea that power follows from information, and that relationship might be asymmetric.
It's not enough to open the efforts to public scrutiny. All aspects of government work best when the relative power between the governors and the governed remains as small as possible -- when liberty is high and control is low. Forced openness in government reduces the relative power differential between the two, and is generally good. Forced openness in laypeople increases the relative power, and is generally bad.
Shirky and Schneier's pieces are worth reading and pondering, because they go beyond the simplistic notions that lie at the extremes, where you hear blowhards screaming slogans like "information wants to be free" and "ideas need the same level of protection as physical property".

For information to be usable by humans or machine, it must be recorded (observation) or synthesized (creativity) and then processed.  Getting from there to here is not always easy, and it's not always cheap.  But once that information is in a usable form, it can enable better decisions.

Technology has made cheap the accumulation and duplication of information, eliminating the barrier of media scarcity that helped sustain the livelihood of those who profited from distributing information.  In a free market, scarcity (lack of supply) applies upward pressure on prices.  When an item can be duplicated cheaply, scarcity decreases.  While distributors have been the most powerful and outspoken lobby on this issue, oftentimes claiming they are doing it to protect those who gathered, dreamed up, and analyzed the information, those other parties have often themselves been shortchanged by the distributors.

The approach taken by those who benefited from copyright law is to push the idea that information is "intellectual property."  To assert their rights to property,  a whole genre of technology has sprung with the goal of restoring artificial scarcity.  Sometimes referred to as "digital rights management", such products attempt to lock down media so that only those who have authorization from the "owner" of intellectual property can access the media.  Many of these technologies wind up having flaws that make them breakable by talented and determined minds.  Others wind up infringing on the rights of consumers with horribly invasive technologies.

I've always been uncomfortable with the idea of "information ownership" as a right akin to physical property.  Information duplication is cheap, so it's not something that's of limited supply like water or energy.  If we follow the idea to its logical conclusion, the only way to prevent the "theft" of ideas is to regulate the function of human minds.  Think of it as Big Brother not only watching you but also getting into your head.  It's the kind of power imbalance that Schneier writes about, taken to a whole new level.

Like Shirky, I don't have a lot of answers to these questions, but I think that whatever resolution emerges should have two components:
  1. Information that could be used to cause real, measurable harm to one's life, liberty, or physical property should be considered personal property, protected from the abuse by government, corporations, and individuals alike.
  2. Copyrights assigned to individuals should be non-transferable.  Individuals can enter into agreements with distributors for a time limited exclusive agreement, subject to renewal upon completion, but the right can't be sole or given away.  This weakens the distributor's incentive to shortchange the the creator and infringe on the privacy of consumers.