Intellectual Property

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If you e-mail me in response to this article, you may not hear back. That is not because I'm too lazy to reply. Well, sometimes I'm not too lazy to reply. Mainly, however, it is because I get so much spam that survival means fast-deleting anything in my mailbox that looks like junk, which sometimes includes real mail from people I don't know.

Like a lot of Internet users, in the last year or so I have gone from regarding spam as one of life's little nuisances to seeing it as a threat to the basic usefulness of e-mail. Technologically, no quick fix is in sight; but it is nonetheless helpful to think clearly about what sort of solution the technologists should be hunting for. The answer, I think, is this: I should have property rights to my e-mail inbox, and I should be able to charge you for admission.

The spam problem, though new in form, is an instance of a very old and familiar dilemma, which economists often call the tragedy of the commons. When any resource is both valuable and freely available, people tend to overuse it. Moreover, everyone anticipates that everyone else will overuse it, so everyone tries all the harder to get while the getting is good. The result is a run on the resource. The tragedy is that everyone's least-favored outcome—the depletion or exhaustion of the resource—is assured.

Centuries of theory and practice have unearthed two effective remedies. One is to appoint a conservator with the unique power to mete out the resource: say, the U.S. Fish and Wildlife Service. The other is to create property rights to the resource and allow a market to develop. What people own, they conserve.

In the case of e-mail, the valuable resource at issue is my attention, and the problem is that access to it is essentially free. People who really want to talk to me need make no more effort than do people who merely want to waste my time. In fact, spammers expend less effort than real people do, because a computer does all their mailing for them, whereas you would need to sit down and write a message.

The result is a run on my attention. My inbox becomes less like a mailbox and more like a Dumpster, through which I must sift to find items of interest—if I can stand the smell.

One frequently proposed solution is to ban spam. But that would mostly reduce mail from reputable advertisers who might have good reasons to get in touch with me. Disreputable mailers would flout or evade the law.

Another solution is for me (or my Internet service, acting on my behalf) to install elaborate filters. That might well be worthwhile, but its effectiveness is spotty, given spammers' agility at outwitting filters, and it unfairly forces spammees to go to a lot of expense and trouble. Why should victims pay?

Yet a third possibility is to levy a public fee or tax for sending e-mail, as, for example, Christopher Caldwell proposed recently in The Weekly Standard. "A penny-per-e-mail charge would drive most spammers out of business, subject them to jail time for tax evasion if they hid their operations, and cost the average three-letter-a-day Internet user just 10 bucks a year," Caldwell writes. In effect, the government would become postmaster general of cyberspace.

A tax comes closer to what I have in mind, but with some quite serious disadvantages. Webheads are understandably reluctant to make the government the conservator of e-mail. That could open the Internet to all kinds of regulation and tempt politicians to milk it for revenues.

Moreover, the government is notoriously bad at setting prices. Just imagine the equivalent of a Postal Rate Commission for e-mail. In fact, by definition, no one-size-fits-all price could possibly be right, because no two people place the same value on their attention. Some people seem to like spam, or at least respond to it. Others detest it. No single price could satisfy both tastes.

Suppose, instead, that we gave _me_ conservatorship of my mailbox, legally enforceable. Then I could sue you for trespassing if you sent e-mails after I told you to stay out. This is not as far-fetched as it may sound: Courts and legal scholars are already developing a nascent concept of cyber-trespass. Suing, however, would be highly inefficient, and best left as the remedy of last resort.

And the remedy of first resort? I charge you. You want to get into my e-mail box without my advance approval? Pay me for the privilege.

Cyber-libertarians tend to abhor any idea that smacks of privatizing cyberspace. Isn't the great benefit of e-mail that it is free? What they forget is that spam filters and missed messages, to say nothing of odious come-ons, are costs, and quickly rising ones. The whole problem now is that the inrush of e-mail is expensive, and the wrong people are paying.

The solution, then, is to make spammers pay their targets. The more you think about the idea, the more sense it makes. For one thing, it lets everyone set his own price. If I like hearing about cheap Viagra, I could charge nothing or almost nothing for access to my inbox. The higher my price, the more I limit incoming e-mails to ones from people or companies with messages that I am likely to respond to. If I set a very high price, I would receive no spam at all. I could find a price that suited me by experimenting, and then I could always adjust it to suit my needs. (Try that with the Postal Service.) Friends and listservs and other designees, of course, would not need to pay me at all.

A nice feature is that the system could be self-financing. Some portion of what I charged per incoming e-mail could be siphoned off to pay administrative costs. Note, moreover, that most ordinary, noncorporate e-mailers send and receive messages in roughly equal quantities. So, after administrative expenses, the costs would net out, except for people who do a lot of sending and not much receiving—namely, spammers.

The pay-me approach is not as novel as it may sound. It builds on the widely bruited concept of a "digital handshake," but replaces it with a digital negotiation. In the handshake model, unsolicited e-mail is automatically answered with a request for a specific response. Only if the right answer is given is the mail delivered. The pay-me approach essentially replaces the question, "Who are you to deserve my attention?" with the question, "How much will you pay for my attention?"

My software could thus be programmed to ask strangers for, say, 1 cent. Your software could be programmed to offer a maximum of, say, half a cent, or 1 cent, or 5 cents. Our software would then automatically haggle. If my demand were under your limit, we would strike a bargain and your mail would be delivered. If not, no deal.

I vetted the pay-me idea with a variety of cyber-law specialists, and they raised some thorny technical issues, such as how to handle bouncebacks, but none seemed insurmountable. There is also the question of how to conduct billions of transactions without gumming up the system.

One ingenious answer was proposed recently, in the online publication Tech Central Station, by a lawyer and economist named David Friedman: cyber-stamps purchased with digital cash. E-cash, notes Friedman (a law professor at Santa Clara University), has already been invented. That technology could be exploited by companies interested in selling solutions to spam. "The first step," writes Friedman, "is to write and distribute plug-ins for the leading e-mail programs, allowing the user to set a price—whatever price he likes—for receiving mail from strangers and to attach e-cash payments—digital stamps—to mail he sends to strangers."

The next step would be to sell digital stamps from an online vending machine. When I received your e-mail, I would collect the required postage—assuming, of course, you had attached enough. Unlike conventional stamps, however, e-stamps would be reusable. I would turn around and send them out again with my own mail. On any given day, most people would be recycling most of the stamps they used. For many if not most e-mailers, trips to the digital stamp machine would be infrequent.

If all of that sounds hairy, remember that every day of the year, the U.S. financial system settles hundreds of millions of transactions worth something like $3 trillion—more than a quarter of the annual gross domestic product—and no one thinks a thing of it. Once high-volume transactions become routine, the cost of processing them drops to near-triviality.

Remember, also, that today's system is anything but free, and that you are already paying for it, and that the costs are only going one way. So if you want to e-mail me, pay up. That, I guarantee, will get my attention.

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