Post Inequality Promotion

Patent reform, parts deficient in commons

Friday, April 18th, 2014

A Five Part Plan for Patent Reform (pdf) by Charles Duan, Director of Patent Reform at Public Knowledge, is simultaneously good and deficient:

  1. Notes theoretical and observed problems with monopoly incentive story underlying patents, mixed empirical results, regulatory cause of strong positive results in one field (pharma), layers of abuse surrounding core in implementation, the existence of many non-monopoly incentives for innovation, conflicts between these and patents … and yet fundamentally accepts the noble origin role of monopoly incentives in protecting apple pie and correlation with some inventions — nevermind causality or counterfactual. Compare text “certainly many inventions through history, such as the light bulb, the airplane, and the photocopier, were invented by small inventors and protected by patents” and its citation (footnote 7, The Myth of the Sole Inventor)!
  2. Discusses commons (Open Innovation Communities) as evidence, and substantially better than typical writing doing so, as at least a concept of pro-commons reform is included: “One task for patent reform, then, is to consider adjustments to the patent system that better accommodate these alternate incentives for innovation. The goal of such adjustments is to better encourage these inventors incentivized by factors other than patents, and to ensure that patents do not stand in the way of those inventors.” As usual, commons regimes carved out of property defaults are mentioned (specifically GPL and DPL), but not as prototypes for default policy. Also, “it is important for these decisionmakers to reach out to inventing communities, even those that do not file for patents, and it is important for those communities to reach out to the Patent Office and other decisionmakers.” I think this also holds for “IP scholars” (which of course ought re-imagine themselves as commons scholars) and OIC participants/commoners — let’s talk about what concrete reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons in other ways so as to change the knowledge economy which eventually determines what interests dominate.
  3. Innovation is assumed the top goal of policy, tempered only by conflict among incentives to innovate, and need to rein in unscrupulous behavior. No mention of freedom and almost none of equality (Joseph Stiglitz is quoted: “The alternative of awarding prizes would be more efficient and more equitable”), let alone as goals which trump innovation.

These three good/deficient pairs are endemic in intellectual property-focused discourse, e.g., see my recent reviews of IP in a World Without Scarcity and Copyright and Inequality — one of the reasons the latter is so great is that places equality firmly on the agenda.

A few other notes on A Five Part Plan for Patent Reform:

  • It’s not a plan, rather an exploration of “five key areas in which the patent system is ripe for reform.” The word plan doesn’t even appear in the text. Well worth reading, but don’t expect to find an actionable plan with five parts.
  • Notes that patent trolls existed in the 1800s (individual farmers were bullied to pay royalties for farm implements covered by patents), which is good (too often current discourse assumes intellectual property worked just fine until recently, with conflict caused by changing technology rather than by power and rent seeking), but then: “Analogously, as discussed above, farm technology was widely used in the nineteenth century, and patents on farm technology were hotly contested. Patents on those farm tools were effectively abolished. But that fix to the patent system did not prevent the software patent problems faced today—it ultimately was a Band-Aid rather than a cure. The same would be true of eliminating software patents. The fundamental issue is that the technologies of tomorrow are unknown, so targeting patent reform to one specific field of technology means that the same problems will only arise again in a different technological sector.” Sure, only abolishing all patents is sufficient, but this analogy seriously undersells the benefit of abolishing software patents: agriculture then was in relative decline of importance in the face of industrialization. Now, software is ascendant, and any technology of tomorrow that matters will involve software.
  • Focuses on FRAND (fair, reasonable and non-discriminatory) licensing for standards. But RF (royalty free) licensing is required for any standard in which commons-based projects are first class participants (e.g., free/open source software and codec patents). No doubt unscrupulous behavior around FRAND and standards is a problem, but the solution is RF for standards.
  • From the Public Knowledge site, reading the paper requires first supplying an email address to a third party (gumroad). Annoying, but on par with PK’s newsletter practices (one of the many favoring tracking users at cost of usefulness to users). Better, the paper is released under CC-BY-SA, so I uploaded a copy to the Internet Archive. Best, Duan has published the paper’s LaTeX source.

Innovation Policy in a World With Less Scarcity

Friday, March 28th, 2014

Mark Lemley‘s new paper IP in a World Without Scarcity provides good overviews of the case “that on the Internet, we increasingly get creativity in spite of, rather than because of, IP law” — the exclusivity incentive for creation story, if it were ever true, is drowning in non-exclusive creativity, and theories that distribution and revelation also require an exclusivity incentive also seem quaint given the Internet — and of 3D printing, general purpose robotics, and synthetic biology, which “share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture.” Thus, Lemley argues, economics and policy need increasingly to grapple with an end to scarcity, IP will be increasingly important, and we can draw lessons from the Internet about how this all will and should play out.

The paper is a quick read at 55 double-spaced pages. I recommend it to anyone interested in near future technology and policy. The paper’s final sentence:

Thinking about such questions has been the province of science fiction authors, but understanding what a post-scarcity economy will look like is the great task of economics for the next century.

Lemley cites two SF books very familiar to many readers: Down and Out in the Magic Kingdom by Cory Doctorow (my positive review) and The Diamond Age: Or, A Young Lady’s Illustrated Primer by Neal Stephenson, which just a few days ago I exploited in a private communication: “…the primer is an interactive learning notebook which adapts as the owner learns, informing a generation of geeks’ vision of education and development. Such tools are increasingly feasible. Will all humans have full access to, and ability to participate in the development of such tools? Only if they are developed in the commons, which will only happen with intentional action.” That’s probably a good segue into my disagreements with and additional idiosyncratic observations about IP in a World Without Scarcity.

By IP, Lemley means intellectual property: mostly copyright, patent, trademark. That has been and will be increasingly a terrible frame for thinking about policy. It gives away the farmfuture to owners of the past, who, as Lemley notes “will fight the death of scarcity” as they have fought the Internet — with more criminalization, more lawsuits, more attempts to fundamentally alter technologies in order to protect their rents. This seems rather suboptimal given that we know the theory upon which IP rests is largely bunk. The alternative, assuming we still only wish to maximize innovation, is to make innovation policy the frame. This makes turning the enclosure dial up or down a sideshow, and pulls in non-enclosure incentives and a host of more indirect and probably much more important determinants of innovation, e.g., education and governance.

The paper provides a couple reasons for focusing on the enclosure version of IP (Lemley doesn’t need any reason; he’s an IP scholar, and though I wish such people would reconceptualize themselves as commons scholars, I have no expectation; in any case the “reasons” are my reading). First, the framing isn’t as harmful as I made it out to be, because IP owners’ fight against the Internet “didn’t work. Copyright infringement remains rampant” and against other democratizing technologies, “IP owners will (probably) lose that fight.” But winning isn’t binary, nor is the continued existence of rampant copyright infringement a good indicator.

Given that network effects are highly relevant for many kinds of knowledge products — a tool or experience is much more valuable if other people can be expected to know it — a significant level of piracy can be profit-maximizing for an IP rent collector. Better indicators might be the collapse of profits from IP rents (the movie industry continues to grow, and while the recorded music industry has declined from its peak, this is nothing like an icehouse collapse, and many other IP rent sectors continue to grow) and the displacement of IP rent collectors as the marketers the dominant knowledge products of the age by other entities better adapted to a world in which fighting against the Internet doesn’t work (the mass and high-status markets are dominated by IP rent collectors in nearly all fields, exceptions being encyclopedias and certain kinds of infrastructure software). These might be minor, highly debatable (maybe the music industry will soon recommence a full collapse, be joined by movies, both displaced by crowdfunding and crowdmarketing; I doubt it given the properties controlled by IP rent collectors and other entities’ unchanged desperation to cut unfavorable deals with them) quibbles, if the IP owners’ “losing” fight against the Internet hadn’t significantly damaged the Internet.

But the Internet has been damaged by the IP owners’ fight. Absent an academic characterization of how significant that damage is (which I would love to read), here are some of the ways:

  • Chilling effect on P2P research, result: more centralization;
  • Services police user content; expensive, barrier to entry, result: more centralization, near monopoly platforms;
  • Services cut rare and unfavorable deals with IP owners, result: same;
  • Innovative services fail to cut deals, or sustainable deals, with IP owners, result: less innovation, more Internet as TV;
  • Monopoly abets monopoly; creates opportunities for bundling monopolies, result: threat to net neutrality;
  • Copyright-based censorship provides cover for all kinds of political censorship, result: political censors have additional justification, doing what Hollywood does;
  • All of above centralization and monopoly makes dominant entities a target for compromise, result: mass surveillance and non-state cybercrime abetted;
  • Our imagination and expectation of what the Internet makes possible is diminished, result: DRM TV and radio and silos organized for spying are seen as the norm, information organized for public benefit such as Wikipedia, unusual; this flipping of democratic hopes for the Internet, a partial AOL scenario, is collateral damage from the IP owners’ war on the Internet.

Similar damage will be done to the potential of new technologies with Internet-like characteristics (in addition to those discussed in the paper, others add the Internet of Things, distributed energy generation, and educational technologies, e.g., Jeremy Rifkin in his new book The Zero Marginal Cost Society, which I plan to review soon) by incumbents. This makes Lemley’s policy recommendations seem overly tentative and timid:

[It] is hard to translate this skepticism into immediate policy prescriptions, both because the whole point is that the need for IP will be sensitive to individual industry characteristics and because the technologies I am discussing are still in their infancy [...] “we should resist the tendency to expand IP reflexively to meet every new technological challenge” [...] “IP owners should not be allowed to reach beyond suing infringers and seek to shut down or modify the technology itself” [...] “IP law needs to make it easier for creators to opt out of the IP regime.”

IP rent collectors will not hold off protecting their interests pending idealized analysis of more fully developed technologies. The damage they do will be built into another generation of technology and society, with IP scholars and activists left to worry that policy is contrary to evidence and to take rearguard actions to protect the level of openness they’ve become accustomed to, but fail to imagine what would have been possible had the stranglehold of IP rent collectors been broken. Just like the Internet today. I’ll come back to less timid and more proactive policy response in a bit.

Second reason for focus on the enclosure version of IP, the usual — big budget movies (and regulated pharma, mentioned earlier in the paper):

There is still a role for IP on the Internet. There are some works that are so costly to create even in the digital world that they are unlikely to be made without effective IP protection. Big-budget movies and video games cost hundreds of millions of dollars to make. No amount of creative fire will drive someone who doesn’t have hundreds of millions of dollars to make Peter Jackson’s Lord of the Rings trilogy. They need corporate backing, and the corporate backers need a revenue stream. But in the Internet era those works are increasingly the the exception, not the rule.

My usual response — we should allow enclosure of our freedom, equality, and the democratic potential of the Internet in order to ensure an ongoing supply of spectacle provided in the same way it has for decades? Spectacle over freedom, really? Of course the “reason” is far more pessimal than that, as the cost of producing and distributing spectacle is going down fast, as is the cost of coordinating distributed patrons who want product, not rent collection. Further, because culture is also so dominated by network effects, we’ll all love whatever spectacle is produced, whether it took 15 or 500 months of work per minute of spectacle. It’s not as insane to contemplate threatening liberal values in order to get new drugs as it is to get new movies — but then considering non-enclosure mechanisms for developing and evaluating new drugs, and the issues of access and equality are more pressing…

More Lemley:

IP is essentially a form of government regulation. The government restricts entry into the market, or alternatively controls the price at which that entry can occur, in order to serve valuable social ends. But regulation is not a moral entitlement or something that we must take for granted. In the past, government regulated all sorts of industries – railroads, trucking, electric power, gas, telephones – because it could not see given the economics of those industries how a free market could produce socially optimal results. But in a surprising number of cases, when we deregulated those industries we found that the market could indeed find a way to supply goods we thought would be provided only with government rule-making. IP is no different in this respect than any other form of regulation. Regulation as a whole shouldn’t disappear, but regulation of particular industries often turns out to be a reflexive response to a failure of imagination, something we do because we have done it for so long that we cannot imagine how a market in that industry could function without it.

This is certainly superior to the rights/owner/property characterization inherent in IP — it recasts “owners” as beneficiaries of regulation — and I think implicitly makes the case for switching one’s frame from intellectual property to innovation policy. That leads us to what the goal of “innovation policy” regulation ought be, and sufficiently proactive policies to achieve that. Should the goal be to maximize “innovation”, “creativity”, the “progress of science and useful arts”, or the like? It would be a huge improvement to sideline enclosure as the primary mechanism and retain the same top objective. But even that improvement would be short sighted, given how systematically innovation policy regulation has and will increasingly shape society. A success of imagination would be to make freedom and equality the top objectives of and constraints on innovation policy, and only then maximize innovation. The innovations generated by a free and equal society are the ones I want. Others are to be gawked at with dismay and guilt.

On proactive policies required, in brief the are pro-commons policies, and I return to Benkler:

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance. Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

Which implies that commons scholarship ought displace intellectual property scholarship (except as a historical investigation of commons malgovernance).

I realize that I haven’t provided any specific pro-commons policy recommendations in this post, nevermind any that are especially pertinent in a world with less scarcity. I’m deeply skeptical that lower, different costs substantially change innovation policy or knowledge commons arguments — the same ones have recurred since at least the 1800s — and am extremely doubtful that the usual assumption that digital networks fundamentally change desirable policy (or here, that further technologies with digital network like characterizations further change desirable policy) is true or non-harmful — these assumptions give away (legitimize) the past to those who now use it to control the future. Some short term and narrow but valuable pro-commons policy suggestions arising from the Wikimedia movement; the free software movement offers other suggestions, if we take some of its practices as prototypes for regulation enforced by mechanisms other than copyright holder whim, more powerful and better aligned with its claims of software freedom as a human right.

A few final quotes from Lemley’s IP in a World Without Scarcity, first two from footnotes:

The challenge posed to copyright by collective production sites like Wikipedia is not just one of the need for incentives. Collective production challenges the whole concept of authorship.

Indeed, and as I keep repeating effective product competition from the commons (such as Wikipedia) re-imagines the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible.

It is possible that creators create in hopes of being one of the few superstars whose work is actually rewarded by copyright law. It is well known that people systematically overvalue the prospect of a large but unlikely reward; that’s why they buy lottery tickets. Some scholars have suggested that the same effect may be at work in IP. But if so, the incentive on which we rely is, as Kretschmer puts it, “based on a systematic cognitive mistake.” In effect, we are coaxing works out of these creators by lying to them about their chances of getting paid.

This has long struck me as being the case. The question is then (in addition to considerations above), do we really want a culture dominated by fools and sell-outs?

A world without scarcity requires a major rethinking of economics, much as the decline of the agrarian economy did in the 19th century. How will our economy function in a world in which most of the things we produce are cheap or free? We have lived with scarcity for so long that it is hard even to begin to think about the transition to a post-scarcity economy. IP has allowed us to cling to scarcity as an organizing principle in a world that no longer demands it. But it will no more prevent the transition than agricultural price supports kept us all farmers. We need a post-scarcity economics, one that accepts rather than resists the new opportunities technology will offer us. Developing that economics is the great task of the 21st century.

But we should aim for much better than the travesty of developed country agricultural policy (even before considering its baneful intersection with IP) as the legacy of this transition! But the consequences of continued capture of innovation policy have the potential to be far worse. Even if few are employed in information industries, there is no transition on the way to displace arranging information as the dominant mode of the economy (however measured; previous modes being hunting/gathering, agriculture, and industry); if the mode is largely controlled by rent collectors, the result could be a very unfree and unequal society — perhaps on the order of pre-industrial agricultural societies.

Shaver: Copyright and Inequality

Thursday, February 27th, 2014

copyright inequality iconI really enjoyed Copyright and Inequality, a new paper by Lea Shaver forthcoming in the Washington University Law Review — enough to attempt a summary on first read, and to read a second time, aloud, in hope that some people who would never read a 52 page paper might still hear its message.

The paper is highly readable, a large part of it (“A Case Study in Book Hunger”, numbered pages 9-22, about books, languages, and the socio-economics of South Africa) of general interest, barely mentioning copyright at all — though if you start by reading that section, hopefully you’ll then read the rest of the paper to find out how copyright is implicated. May the remainder of this post be a complement.

Inequality Promotion

To put it crudely, Copyright and Inequality mostly concerns copyright’s role in keeping the poor poor, rather than its role in concentrating wealth. The latter seems even less studied than the former, but the former seems more important, unless you consider rule by plutocracy the most urgent issue in the world.

In the category of keeping the poor poor, the magnitude of copyright’s negative impact on neglected language (cf. neglected disease) populations was new to me — the requirement of permission to translate contributes to almost no books being available in these languages, for pleasure, or for education, the latter creating a bottleneck for further life opportunities (n.b. “everyone should learn English” is a multi-generation strategy only successfully carried out by wealthy countries so far).

The cost issue is obvious, but can hardly be repeated enough. Shaver provides the example of books (when available at all, almost always in English) costing 2x as much in South Africa as in the US or UK, while income is far lower, especially for the poor (about half of the population lives on less than US$50 a month).

Many countries are far poorer than South Africa, and large populations dependent on neglected languages are common. Many wealthy countries, the U.S. in particular, have large populations of poor and neglected language speakers. Copyright is helping keep the poor poor everywhere. (Expensive textbooks are appropriately a priority target in the U.S., but every good that carries a copyright monopoly tax contributes in some combination to material poverty and cultural exclusion.)

Shaver makes a very strong case for including distributive justice in copyright discourse, along the way summarizing well known problems with the dominant romantic authorship + incentive narrative which has sidelined equality. She doesn’t push for any single solution, but the most interesting discussion is of the possibility of a carve out for translation to neglected languages, along the lines of such for braille and audio versions for use by blind users. Shaver says that copyright term extension should be opposed (additionally) for distributive justice concerns, but term reduction is “politically impossible” due to treaty obligation. (In what other fields is scholarly discourse on substantially alternative and obviously superior arrangements — the current regime based on “more fallacy than fact” — so readily discarded?)

Commons

Copyright and Inequality mentions free/open/commons production or distribution briefly in a few places:

  • Another scholar mentioned commons-based peer production in the context of patents.
  • The “more radical” (than providing access at public libraries) solution of “allocating public textbook funds to the production of Open Educational Resources.” (Actually a rapidly growing practice.)
  • “Open business models” meaning very broadly cultural production not dependent on restricting copying.
  • “Limited commons”, e.g., copyright might be relaxed for a neglected language, but translations of new works in that language to non-neglected languages would be fully restricted.

I’m happy that these are included at all, but commons advocates need to make full versions central. A carve out for translation to neglected languages would be better than none, but if it is achieved, will take many years of negotiation, and be riddled with requirements that will limit effectiveness (as Shaver notes is the case with carve outs for disability), and obviously would leave all non-linguistic copyright inequality mechanisms, and the resources of interest groups that support enclosure, fully intact. Commons-based funding mandates and peer production can happen much faster, and are anything but politically impossible, and can make a huge impact, far beyond a “patch”.

This potential huge impact might hold especially for neglected languages, which essentially are not being served at all by proprietary production. For everyone, as I’ve said many times, product competition from the commons both reduces the resources available to enclosure industries to lobby for protectionism and re-imagines the range of desirable policy, in sum shifting what is politically possible.

Buttressed with recognition of copyright inequality, in particular its negative impact on neglected language populations, what might various commons advocates, projects, and movements do? Some off-the-cuff notes:

  • I’ve long admired Wikimedia’s commitment to host its projects (Wikipedia and friends) for any language community capable of maintaining a project, even a very small one, and its enunciation of the importance of this commitment and of Wikimedia’s freedom (as a non-profit) to pursue such a commitment. The result so far includes Wikipedia in 287 languages and much more, with even more in incubation, formal and informal movement communities around the world, a program to make Wikipedia access free of mobile data charges in the developing world, and probably much more I’m not aware of. Should the findings of Copyright and Inequality lead the various parts of the Wikimedia movement to multiply their efforts to support the growth of and access to free knowledge in neglected languages and increase estimates of the Wikimedia movement’s economic values accordingly? The paper’s findings are probably already well known by the staunchest language advocates around Wikimedia, but perhaps they should be taken even more seriously than they already are. I am ignorant of the human side of Wikimedia outreach to neglected language communities, but surely there is now a substantial body of experience which could be leveraged in making further investments and partnerships. On the technical side, perhaps the migration of lots of knowledge into the truly multilingual Wikidata project could enable more projects in more languages to be truly useful, even for very small language communities?
  • The importance of first language availability of texts, especially educational materials, implies that software user interface availability in the user’s first language is probably pretty important too. What would it take to increase popular free/open source software application language support from dozens (Firefox claims over 80, LibreOffice over 30) to hundreds, even thousands of languages, thereby including most neglected languages? More collaboration across program translation efforts? More centralization? Collaboration with governments, educational systems, funders? A higher bar for user interface changes requiring translation updates? Fewer programs?
  • Fund the creation new free knowledge (inclusive of entertainment!) works in neglected languages, e.g., with small grants and prizes, and introduction of collaborative production, e.g., book sprints?
  • Market, sell, distribute, push for adoption of free knowledge works among neglected language populations — this is what publishers do (given a wealthy enough population anyway), and what must be done for the commons. Making works available online, with no promotion, only solves problems for an elite, and doesn’t offer proprietary publishers any competition, where they choose to compete.
  • Could recognition of the value of neglected languages provide an impetus for a new and large effort toward free software machine translation? Little progress has been made thus far, perhaps in part because some proprietary services such as Google Translate are gratis, and work for most non-neglected languages. Could redoubled effort to support neglected languages in Wikimedia projects (Wikisource translations might be especially relevant) and free/open source software projects help provide needed parallel corpora?
  • Awareness of the plight of neglected language populations could buttress arguments for open funding mandates, particularly if it could be demonstrated that some resulting materials were actually translated and used by said populations — neglected language translation and marketing might even be included in some such mandates, or funders and projects working with neglected language populations could specifically target translation and distribution of the “best” of the output of open funding mandates.
  • Awareness of neglected languages could buttress arguments for voluntary release of works under free/open licenses or into the public domain. (A handful of readers might note that translation-only licenses have been proposed, and a “Developing Nations” license briefly offered. The latter got almost no use before it was retired, perhaps in part because it seemed both confusing and paternalistic — and I doubt these very limited commons offer much, including in public license form. I can’t stress enough that sales/marketing/distribution/adoption are very tough and very necessary, and commons projects have largely failed at them to date. Given this, it is insane to cut off entire segments of potential collaborators, e.g., free knowledge projects and diaspora communities.)
  • Increasing commons movements’ self-awareness of their ability to help neglected language populations could buttress these movements’ self-awareness of their own political potency, leading them to act unashamedly as an interest group and to boldly stake a claim for the commons as the central paradigm for information/innovation policy, thereby further increasing their political potency, and ability to help neglected language populations. (Recursion intentional!)

Spectacle

Further excerpts from Copyright and Inequality:

Overall, copyright law works quite well for copyright scholars at leading universities.

Funniest sentence in the paper, presumably unintentional. (One small bit of progress would be for “copyright scholars” to re-imagine themselves as “commons scholars”; cf. copyright experts→commons experts.)

Its protections give us control over our own writings, which we can choose to invoke or to waive, as we believe best suits our own interests. Its incentives help to stimulate the production of an ever-greater variety of informative and entertaining works for our professional and personal development. Its limitations on access and use of copyrighted works only rarely pose significant problems for us. From this perspective, it is easy to miss the more profound problems posed for the 99% of the world that does not enjoy the same privileged position of access.

From this privileged perspective, creative production resembles a constantly expanding buffet of choice laid before us, among which we may select the most appealing options until we are full. Perhaps some of these offerings are being produced in languages we do not speak. No matter, more than enough choices remain. In our affluence of resources and opportunities, we might even choose to acquire fluency in a second language to further expand our choices. Copyright protection promises to raise the quality, the diversity, at the very least the sheer number of offerings placed upon the table. How could this be a bad thing? But can your peripheral vision stretch farther still? If so, you might see, standing back behind you, a hungry crowd. They are the poor. They are a majority of the world. They too admire the buffet. But they realize it is not laid for them. For some of us, the proliferation of new works is a bounty, opening up new worlds of consumer choice, new horizons of creativity to explore. For most of the world’s population, however, the expanding universe of new cultural works is yet another site of social privilege from which they are effectively excluded.

Well and powerfully said regarding the unseen and neglected, but I submit further that our forward vision is profoundly myopic. Relative to the (perhaps two billion?) people who are both poor and only read a neglected language, wealthy people with English fluency are incredibly privileged, and have ready access to an astounding and ever-growing surfeit of culturally relevant educational and entertainment materials. Those employed by wealthy universities have yet more ready access. Just before the humorous sentence:

Located in major research universities, we also enjoy supremely convenient access to the best-funded libraries in the world. As a group, we do not fail to complain when we notice that copyright law impedes our own ability to access, create, and distribute cultural works. Fortunately, our legal expertise and professional experience positions us well to both recognize the legal roots of our problems, and to suggest solutions to our legislatures and courts.

But however well positioned relative to neglected language populations or the general public of wealthy countries, these complaints and suggestions always face a tremendous uphill battle, at best. The enclosure industries are much better positioned than their scholars.

We love whatever culture we grow up in, but I doubt the one driven by the maximization of rents available from cultural products (cf.), at the expense of freedom and equality, is anywhere near the best of possible worlds, even for those with access to those products. I think an analogy to the internet is appropriate: had a small number of closed electronic services continued to dominate, and a decentralized network never developed, we would now think of the AOL, CompuServe, and Prodigy of 2014 as amazing — and they would be! The much better world of the internet would be beyond the imagination of most. Culturally, that AOLternative universe is the one we live in. But we can catch some glimpses of the internet universe, e.g., in Wikipedia, in PLOS, in memories of Napster.

Perhaps appropriately, only acting in the interests of poor and neglected language populations, against copyright inequality, will we be able to leave the AOL culture scenario and into the internet culture universe.

Closing quote from Copyright and Inequality:

An often-quoted statement by John Maynard Keynes posits that “The political problem of mankind is to combine three things: economic efficiency, social justice, and individual liberty.” The perspectives of economic efficiency and individual liberty have profoundly informed our discussion of copyright law. Yet the perspective of social justice has been comparatively absent. Reckoning with the ways in which social inequality impacts the market for copyrighted work begins to supply this missing perspective. In the end, the inequality insight also leads us back to economic efficiency and individual liberty. For a system of creative production and exchange that excludes most of the world from participation is also not economically efficient. Nor does it effectively promote individual liberty for all. To promote all three of these values, copyright policy and scholarship must account for the realities of social inequality.

Read the entire paper, and share!

IP, commons, and World Values Survey traditional/secular-rational and survival/self-expression dimensions

Sunday, February 16th, 2014

I recently wrote about Benkler’s 2002 claim that “commons-based peer production” or the “networked information economy” could enhance the liberal values of democracy, equality, freedom, and innovation and the corollary that “intellectual property” is a barrier to peer production, thus to realizing these gains. More riffing on Benkler’s papers forthcoming, but that post also serves to kick off a series I’ve long meant to do — looking at IP (take your pick: intellectual property, intellectual/industrial protectionism, inequality promotion, information/innovation policy) and commons from the perspective of various general characterizations of, take your pick: ethics, morality, politics, values. These posts will be rather naive, reflecting in some proportions the generally ignorant nature of what passes as discourse on IP and my ignorance of wide swaths of discourse. I appreciate efforts from others to correct both.

You’ve probably seen a plot of cultures on the dimensions of traditional/secular-rational values and survival/self-expression values, from World Values Survey data, but here it is again:
plot of cultures on the dimensions of traditional/secular-rational values and survival/self-expression values

Definitions, excerpted from Wikipedia:

Traditional values emphasize the importance of religion, parent-child ties, deference to authority and traditional family values. People who embrace these values also reject divorce, abortion, euthanasia and suicide. These societies have high levels of national pride and a nationalistic outlook.

Secular-rational values have the opposite preferences to the traditional values. These societies place less emphasis on religion, traditional family values and authority. Divorce, abortion, euthanasia and suicide are seen as relatively acceptable.

Survival values place emphasis on economic and physical security. It is linked with a relatively ethnocentric outlook and low levels of trust and tolerance.

Self-expression values give high priority to environmental protection, growing tolerance of foreigners, gays and lesbians and gender equality, and rising demands for participation in decision-making in economic and political life.

How do the current IP regime and treating knowledge as a commons align on these dimensions?

Property seems aligned with traditional and survival values:

  • Deference to authority: literally, deference to those legally recognized as authors, practically, deference to highly capitalized intermediary “owners” who define culture through mass marketing.
  • Traditional family values: highly capitalized intermediaries are often willing accomplices in promoting, and suppressing other values.
  • Nationalistic: those foreign pirates!
  • Economic security: tropes of caring about starving artists and their descendants, and the centrality of the assumption that knowledge would not be created without property and of showing off how much “economic activity” industry generates.
  • Low levels of trust and tolerance: previous assumption, and want to control unauthorized adaptations and uses.

Commons seems aligned with secular-rational and self-expression values:

  • Less emphasis on authorial and intermediary control, largely debunking and struggling against these.
  • Non-traditional, unintended, global uses welcomed as beneficial: sources of decentralized innovation.
  • Outré uses seen as relatively acceptable, not to be suppressed by dominant intermediaries or legal persecution.
  • Cultural environmentalism, knowledge ecology threatened by enclosure rather than inadequate incentive.
  • Tropes of participatory culture, democratized innovation, commons-based peer production as a means of enhancing liberal values of democratic discourse, individual autonomy, equality.

I didn’t include religion above because it plays little role in contemporary IP discourse, but historically I’d place it solidly with Property, thus furthering its alignment with traditional values — religion has been a and often the primary enforcer of control and exclusivity over knowledge from the dawn of civilization.

Clearly above is a motivated characterization. Please attack it. Three obvious starting points:

  • Commons advocates look back fondly on gift exchange in traditional cultures. I don’t think this will be a fruitful attack, as gift economy does not align with traditional or survival values as used in the World Values Survey. But you could construct a tenuous multi-step argument.
  • Jurisdictions with stronger enforcement of intellectual property tend to have populations with secular-rational and self-expression values, relative to those with weaker enforcement.
  • Property, through its support for centralized control and highly capitalized intermediaries, is exactly what destroys traditional and survival values, even if relying on same for legitimacy, and needing to strike occasional bargains with traditional values advocates.

Perhaps these amount to claim that commons expressively aligns with secular-rational and self-expression values, but property instrumentally aligns with same. This largely brings us back to theory and facts: does property or commons maximize innovation? But, what about freedom and equality as desiderata of innovation policy? I conclude for now that the current IP regime aligns with traditional and survival values and knowledge commons with secular-rational and self-expression values.

Sleepwalking past Freedom’s Commons, or how peer production could increase democracy, equality, freedom, and innovation, all of them!

Sunday, February 9th, 2014

2007:

The most interesting parts of ‘s The Wealth of Networks concern how peer production facilitates liberal values. I’ll blog a review in the fullness of time.

In lieu of that which may never come, some motivated notes on Coase’s Penguin, or Linux and the Nature of the Firm (2002, 78 pages) and Freedom in the Commons: Towards a Political Economy of Information (2003, 32 pages; based on a 2002 lecture). A friend wanted to trial a book group with the former. Re-reading that led me to the latter, which I hadn’t read before. Reading them together, or even just the latter, might be a good alternative to reading The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006, 473 pages).

As might be expected from decade plus old internet research, some of the examples in the papers and book are a bit stale, but sadly their fundamental challenge remains largely unacknowledged, and only taken as a byproduct. I would love to be convinced otherwise. Is the challenge (or my extrapolation) wrong, unimportant, or being met satisfactorily?

Excerpts from Freedom in the Commons (emphasis added by me in all quotes that follow):

[Commons-based peer production] opens a range of new opportunities for pursuing core political values of liberal societies—democracy, individual freedom, and social justice. These values provide three vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because, however, they are often contradictory rather than complementary, the pursuit of each of these values places certain limits on how we conceive of and pursue the others, leading different liberal societies to respect them in different patterns.

An underlying efficient limit on how we can pursue any mix of arrangements to implement our commitments to democracy, autonomy, and equality, however, has been the pursuit of productivity and growth.

[Commons-based peer production] can move the boundaries of liberty along all three vectors of liberal political morality.

There is no benevolent historical force, however, that will inexorably lead the technological-economic moment to develop towards an open, diverse, liberal equilibrium. If the transformation occurs, it will lead to substantial redistribution of power and money from the twentieth-century, industrial producers of information, culture, and communications—like Hollywood, the recording industry, and the telecommunications giants—to a widely diffuse population around the globe. None of the industrial giants of yore are going to take this redistribution lying down. Technology will not overcome their resistance through some insurmountable progressive impulse. The reorganization of production, and the advances it can bring in democracy, autonomy, and social justice will emerge, if it emerges, only as a result of social and political action. To make it possible, it is crucial that we develop an understanding of what is at stake and what are the possible avenues for social and political action. But I have no illusions, and offer no reassurances, that any of this will in fact come to pass. I can only say that without an effort to focus our attention on what matters, the smoke and mirrors of flashy toys and more convenient shopping will be as enlightening as Aldous Huxley’s soma and feelies, and as socially constructive as his orgy porgy.

Let us think, then, of our being thrust into this moment as a challenge. We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will largely depend on policy choices that we will make over the next decade or two. To be able to understand these choices, to be able to make them well, we must understand that they are part of a social and political choice—a choice about how to be free, equal, and productive human beings under anew set of technological and economic conditions. As economic policy, letting yesterday’s winners dictate the terms of economic competition tomorrow is disastrous. As social policy, missing an opportunity to enrich democracy, freedom, and equality in our society, while maintaining or even enhancing our productivity, is unforgivable.

Although the claim that the Internet leads to some form or another of “decentralization” is not new, the fundamental role played in this transformation by the emergence of non-market, nonproprietary production and distribution is often over-looked, if not willfully ignored.

First, if the networked information economy is permitted to emerge from the institutional battle, it will enable an outward shift of the limits that productivity places on the political imagination. Second, a society committed to any positive combination of the three values needs to adopt robust policies to facilitate these modes of production,because facilitating these modes of production does not represent a choice between productivity and liberal values, but rather an opportunity actually to relax the efficient limit on the plausible set of political arrangements available given the constraints of productivity.

We are at a moment in our history at which the terms of freedom and justice are up for grabs. We have an opportunity to improve the way we govern ourselves—both as members of communities and as autonomous individuals. We have an opportunity to be more just at the very core of our economic system. The practical steps we must take to reshape the boundaries of the possible in political morality and to improve the pattern of liberal society will likely improve productivity and growth through greater innovation and creativity. Instead of seizing these opportunities, however, we are sleepwalking.

What arrangements favor reorganization towards commons-based peer production? From Coase’s Penguin:

This suggests that peer production will thrive where projects have three characteristics. First, they must be modular. That is, they must be divisible into components, or modules, each of which can be produced of the production of the others. This enables production to be incremental and asynchronous, pooling the efforts of different people, with different capabilities, who are available at different times. Second, the granularity of the modules is important and refers to the sizes of the project’s modules. For a peer production process to pool successfully a relatively large number of contributors, the modules should be predominately fine-grained, or small in size. This allows the project to capture contributions from large numbers of contributors whose motivation levels will not sustain anything more than small efforts toward the project. Novels, for example, at least those that look like our current conception of a novel, are likely to prove resistant to peer production. In addition, a project will likely be more efficient if it can accommodate variously sized contributions. Heterogeneous granularity will allow people with different levels of motivation to collaborate by making smaller- or larger-grained contributions, consistent with their levels of motivation. Third, and finally, a successful peer production enterprise must have low-cost integration, which includes both quality control over the modules and a mechanism for integrating the contributions into the finished product.

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance.  Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

There’s been some progress on institutional tools (i.e., policy arrangements writ large, the result of “political action” above) in the 11 or so years since (e.g., Open Access mandates), but not nearly enough to outweigh global ratcheting of intellectual freedom infringing regimes, despite the occasional success of rearguard actions against such ratcheting. Neither these rearguard actions, nor mainstream (nor reformist) discussion of “reform” put commons at the center of their concerns. The best we can expect from this sleepwalking is to muddle through, with policy protecting and promoting commons where such is coincidentally aligned with some industrial interest (often simplified to “Google” in the past several years, but that won’t last forever).

My extrapolation (again, tell me if facile or wrong): shifting production arrangements so as to favor commons-based peer production is as important as, complementary to, and almost necessary for positive policy change. Commons-based product competition simultaneously changes the facts on the ground, the range of policies imaginable, and potentially create a commons “industrial” interest group which is recognizably important to regulators and makes commons-based peer production favoring policy central to its demands — the likely Wikimedia response to the European Commission copyright consultation is a hopeful example.

There has been lots of progress on improving commons-based peer production (e.g., some trends), but also not nearly enough to keep up with proprietary innovation, particularly lacking and missing huge opportunities where proprietary incumbents real advantages sit — not production per se, but funding and distribution/marketing/cultural relevance making. Improving commons-based peer production, shifting the commanding heights (i.e., Hollywood premium video and massively expensive and captured pharma regulatory apparatus) to forms more amenable to commons-based peer production, and expanding the scope of commons-based peer production to include funding and relevance making are among the most potent political projects of our time.

Wake up. ^_^

Technology and wealth Inequality Promotion

Thursday, January 30th, 2014

Sam Altman, Technology and wealth inequality:

Without intervention, technology will probably lead to an untenable disparity—so we probably need some amount of intervention. Technology also increases the total wealth in a way that mostly benefits everyone, but at some point the disparity just feels so unfair it doesn’t matter.

This widening wealth divide is happening at all levels—people, companies, and countries. And either it will keep going, or innovation will stop.

The very first intervention ought be in our innovation policy, which presently is tuned to maximize concentration of wealth and minimize the access of everyone to the benefits of innovation — because our innovation policy is a property/rent seeking regime. A few data points.

Such an intervention won’t stop innovation, but might change it, and we should want that. Beautiful progress is that which is produced by a freedom and equality respecting regime. We ought be suspicious and ashamed of progress which depends on infringing freedom and promoting inequality. If mass spectacle ends when the regime falls, all the better. We’ll love whatever culture we have and create, will be amazed by its innovation, in part encouraged through non-enclosing innovation policy.

If innovation-driven inequality is a big problem, we ought be more highly valuing (including figuring out how to characterize that value) and promoting existing systems which depend on and promote freedom and equality, i.e., commons-based ones such as free/open source software and the Wikimedia movement (and recursively working on equality and diversity within those systems).

Innovation could tend to increase inequality independent of wealth concentrating, property/rent-seeking based innovation policies and other political factors. If this is the case (or honestly even if it is not), I’m always disappointed that progressivity of tax systems isn’t central to the debate — and I don’t mean marginal income tax rates. Basically property > income > sales. Further, property property can’t be moved and taxing it doesn’t require extensive privacy invasions. In theory I’d expect the strongest states and most free and equal societies of the future to strongly prefer real property taxation over other systems. But perhaps path dependencies and other factors will swamp this (and innovation policy as well).

Annual thematic doubt

Friday, January 10th, 2014

As promised, my first annual thematic doubt post, expressing doubts I have about themes I blogged about during 2013.

Intellectual Freedom

If this blog were to have a main purpose other than serving as a despository for my tangents, it’d be protecting and promoting intellectual freedom, in particular through the mechanisms of free/open/knowledge commons movements, and in reframing information and innovation policy with freedom and equality outcomes as top. Some representative posts: Economics and the Commons Conference [knowledge stream] report, Flow ∨ incentive 2013 anthology winner, z3R01P. I’m also fond of pointing out where these issues surface in unusual places and surfacing them where they are latent.

I’m fairly convinced on this theme: regimes infringing on intellectual freedom are individual and collective mind-rot, and “merely” accentuate the tendencies toward inequality and control of whatever systems they are embedded in. Mitigating, militating against, outcompeting, and abolishing such regimes are trivially for the good, low risk, and non-revolutionary. But sure, I have doubts:

  • Though I see their accentuation of inequality and control as increasingly important, and high leverage for determining future outcomes, copyright and patent could instead be froth. The cause of intellectual freedom might be better helped by fighting for traditional free speech issues, for tolerance, against mass incarceration, against the drug war, against war, against corruption, for whatever one’s favored economic system is…
  • The voluntarily constructed commons that I emphasize (e.g., free software, open access) could be a trap: everything seems to grow fast as population (and faster, internet population) grows, but this could cloud these commons being systematically outcompeted. Rather than being undersold, product competition from the commons will never outgrow their dwarfish forms, will never shift nor take the commanding heights (e.g., premium video, pharma) and hence are a burden to both policy and beating-of-the-bounds competition. Plus, copyright and the like are mind-rot: generations of commons activists minds have been rotted and co-opted by learning to work within protectionist regimes rather than fighting and ignoring them.
  • An intellectual freedom infringing regime which produced faster technical innovation than an intellectual freedom respecting regime could render the latter irrelevant, like industrial societies rendered agricultural societies irrelevant, and agricultural societies rendered hunter-gatherer societies irrelevant, whatever the effects of those transitions on freedom and other values were. I don’t believe the current regime is anywhere close to being such a thing, nor are the usual “IP maximalism” reforms taking it in that direction. But it is possible that innovation policy is all that matters. Neither freedom and equality nor the rents of incumbents matter, except as obstacles and diversions from discovering and implementing innovation policy optimized to produce the most technical innovation.

I’m not, but can easily imagine being won over by these doubts. Each merits engagement, which could result in much stronger arguments for intellectual freedom, especially knowledge commons.

Critical Cheering

Unplanned, unnoticed by me until late in the year, my most pervasive subtheme was criticism-embedded-in-praise of free/open/commons entities and actions. Representative posts, title replaced with main target: Creative Commons, crowdfunding, Defensive Patent License, Document Freedom Day, DRM-in-HTML5 outrage, EFF, federated social web, Internet Archive, Open Knowledge Foundation, SOPA/ACTA online protests, surveillance outrage, and the Wikimedia movement.

This is an old theme: examples from 2004, 2005, 2006, 2007, 2008, 2011, and 2012. 2009 and 2010 are absent, but the reason for my light blogging here bears some relation to the theme: those are the years I was, in theory, most intensely trying to “walk my talk” at Creative Commons (and mostly failed, side-tracked by trying to get the organization to follow much more basic best practices, and by vast amounts of silliness).

Doubts about the cheering part are implied in the previous section. I’ll focus on the criticism here, but cheering is the larger component, and real: of entities criticized in the above links, in 2013 I donated money to at least EFF, FSF, and Internet Archive, and uncritically promoted all of them at various points. The criticism part amounts to:

  • Gains could be had from better coordination among entities and across domains, ranging from collaboration toward a short term goal (e.g., free format adoption) to diffuse mutual reinforcement that comes from shared knowledge, appreciation, and adoption of free/open/commons tools and materials across domains (e.g., open education people use open source software as inherent part of their practice of openness, and vice versa).
  • The commons are politically potent, in at least two ways: minimally, as existence proof for creativity and innovation in an intellectual freedom respecting regime (carved out); and vastly underappreciated, as destroyer of rents dependent on the intellectual freedom infringing regime, and of resources available for defending those rents and the regime. Commons are not merely to be protected from further bad policy, but are actors in creating a good policy environment, and should be promoted at every turn.

To be clear, my criticism is not usually a call for more “radical” or “extreme” steps or messages, rather more fulsome and coordinated ones. Admittedly, sometimes it may be hard to tell the difference — and this leads to my doubts:

  • Given that coordination is hard, gaining knowledge is expensive, and optimization path dependent, the entities and movements I criticize may not have room to improve, at least not in the direction I want them to improve in. The cost of making “more fulsome and coordinated” true might be greater than mutual reinforcement and other gains.
  • See the second doubt in the previous section — competition from the commons might be futile. Rather than promoting them at every turn, they should sometimes be held up as victims of bad policy, to be protected, and sometimes hidden from policy discourse.

The first doubt is surely merited, at least for many entities on many issues. For any criticism I have in this space, it makes sense to give the criticized the benefit of the doubt; they know their constraints pretty well, while I’m just making abstract speculations. Still, I think it’s worthwhile to call for more fulsome and coordinated strategy in the interstices of these movements, e.g., conversation and even this blog, in the hope of long-term learning, played out over years in existing entities and movements, and new ones. I will try henceforth to do so more often in a “big picture” way, or through example, and less often through criticism of specific choices made by specific entities — in retrospect the stream of the latter on this blog over the last year has been tedious.

International Apartheid

For example: Abolish Foreignness, Do we have any scrap of evidence that [the Chinese Exclusion Act] made us better off?, and Opposing “illegal” immigration is xenophobic, or more bluntly, advocating for apartheid “because it’s the law”. I hinted at a subtheme about the role of cities, to be filled out later.

The system is grossly unjust and ought be abolished, about that I have no doubt. Existing institutions and arrangements must adapt. But, two doubts about my approach:

  • Too little expression of empathy with those who assume the goodness of current policy. Fear of change, competition, “other” are all deep. Too little about how current unjust system can be unwound in a way the mitigates any reality behind these fears. Too little about how benefits attributed to current unjust system can be maintained under a freedom respecting regime. (This doubt also applies to the intellectual freedom theme.)
  • Figuring out development might be more feasible, and certainly would have more impact on human welfare, individual autonomy, than smashing the international apartheid system. Local improvements to education, business, governance, are what all ought focus on — though development economics has a dismal record, it at least has the right target. Migration is a sideshow.

As with the intellectual freedom theme, these doubts merit engagement, and such will strengthen the case for freedom. But even moreso than in the case of intellectual freedom infringing regimes, the unconscionable and murderous injustice of the international apartheid regime must be condemned from the rooftops. It is sickening and unproductive to allow discourse on this topic to proceed as if the regime is anything but an abomination, however unfeasible its destruction may seem in the short term.

Politics

Although much of what I write here can be deemed political, one political theme not subsumed by others is inadequate self-regulation of the government “market”, e.g., What to do about democratically elected terrorist regimes, Suppose they gave a war on terror and a few exposed it as terror, and Why does the U.S. federal government permit negative sum competition among U.S. states and localities?

The main problem with this theme is omission rather than doubt — no solutions proposed. Had I done so, I’d have plenty to doubt.

Refutation

I fell behind, doing refuting only posts from first and second quarters of 2005. My doubt about this enjoyable exercise is that it is too contrived. Many of the refutations are flippant and don’t reflect any real doubts or knowledge gained in the last 8 years. That doubt is what led me to the exercise of this post. How did I do?

Software Patent NATO, 1993

Tuesday, November 26th, 2013

In my thoughts on the Defensive Patent License, I neglected to note in the history section a similar proposal made in 1993 by John Walker, founder of Autodesk, PATO: Collective Security In the Age of Software Patents:

[T]he trend toward increased litigation, constraining innovation in the software industry, is accelerating. The U.S. government is using trade negotiations to force other countries to institute software patents in their own markets.

While eliminating software patents would be the best solution, changing the law takes a long time and is uncertain to succeed. I’ve been trying to puzzle out how the software industry might rescue itself from immolation through litigation and came up with the following proposal.

Could have been written in 2013.

I’ve been thinking about using NATO as a model of a patent defence consortium. Suppose a bunch of big software companies (perhaps led by Oracle, who’s already taken the point on this) were to form PATO–Patent And Technology Organisation–and contribute all their current software patents, and all new software patents they were granted as long as they remained a member of PATO, to its “cross-licensing pool”. To keep the lawyers and shareholders from going nuts, the patents would be licensed through PATO but would remain the property of the member–a member could withdraw with appropriate notice and take the patents back from the pool.

Any member of PATO would be granted an automatic, royalty-free license to use any patent in the cross-licensing pool. Thus, by putting your patents in the pool, you obtain access to all the others automatically (but if you withdraw and pull your patents, of course you then become vulnerable for those you’ve used, which creates a powerful disincentive to quit).

The basic principle of NATO is that an attack on any member is considered an attack on all members. In PATO it works like this–if any member of PATO is alleged with infringement of a software patent by a non-member, then that member may counter-sue the attacker based on infringement of any patent in the PATO cross-licensing pool, regardless of what member contributed it. Once a load of companies and patents are in the pool, this will be a deterrent equivalent to a couple thousand MIRVs in silos–odds are that any potential plaintiff will be more vulnerable to 10 or 20 PATO patents than the PATO member is to one patent from the aggressor. Perhaps the suit will just be dropped and the bad guy will decide to join PATO….

Differences with the DPL, two decades hence:

  • PATO was to cover software patents only; a challenge to define.
  • PATO members could counter-sue attackers with patents from any other member; I have no idea whether this is legally feasible.
  • PATO never moved beyond raw idea stage, as far as I know, while legal work on the DPL has gone on for a few years, DPL 1.0 is complete, and the project is set for a public launch in February.

In 1993, software patents were new, and still opposed by Oracle and Microsoft. Since then both have become software patent aggressors and defend the idea of software patents.

Many companies that claim to dislike software patent aggression in 2013 will become aggressors over the next years, or their patents will be obtained and used by trolls and other aggressors. Becoming a DPL user now may be an effective way for such companies to avoid this fate, and avoid contributing to the stifling of equality, freedom, and innovation.

Addendum 20131202: Another difference between the PATO sketch and the DPL implementation is that the former includes “US$25/year” to be a member, while the latter is gratis. I assume that the nascent DPL Foundation will be able to attract adequate grants and other support, perhaps more than could be obtained through a membership fee, but the choice is at the least an interesting and important one.

Hierarchy of mechanisms for limiting copyright and copyright-like barriers to use of Public Sector Information, or More or Less Universal Government License(s)

Sunday, November 24th, 2013

This sketch is in part motivated by a massive proliferation of copyright and copyright-like licenses for government/public sector information, e.g., sub- and sub-sub-national jurisdiction licenses and sector- and jurisdiction-specific licenses intended to combat license proliferation within a sector within a jurisdiction. Also by longstanding concern about coordination among entities working to limit barriers to use of PSI and knowledge commons governance generally.

Everything following concerns PSI only relative to copyright and copyright-like barriers. There are other pertinent regulations and considerations to follow when publishing or using PSI (e.g., privacy and fraud; as these are pertinent even without copyright, it is silly and unnecessarily complicating to include them in copyright licenses) and other important ways to make PSI more useful technically and politically (e.g., open formats, focusing on PSI that facilitates accountability rather than openwashing).

Eliminate copyright and copyright-like restrictions

No longer barriers to use of PSI, because no longer barriers to use of information. May be modulated down to any general copyright or copyright-like barrier reduction, where the barrier is pertinent to use of PSI. Examples: eliminate sui generis database restrictions where they exist, increase threshold of originality required for information to be subject to copyright restriction, expand exceptions and limitations to copyright restrictions, expand affirmative user rights.

Eliminate copyright and copyright-like restrictions for PSI

For example, works produced by employees of the U.S. federal government are not subject to copyright restrictions in the U.S. Narrower exclusions from copyright restrictions (e.g., of laws, court rulings) are fairly common worldwide. These could be generalized to include eliminate copyright and copyright-like restrictions for PSI, worldwide, and expanded to include PSI produced by contractors or other non-government but publicly funded entities. PSI could be expanded to include any information produced with public funding, e.g., research and culture funded by public grants.

“Standard” international licenses for PSI

Public copyright licenses not specifically intended for only PSI are often used for PSI, and could be more. CC0 is by far the best such license, but other Creative Commons (CC) and Open Data Commons (ODC) licenses are frequently used. Depending on the extent to which the licenses used leave copyright and copyright-like restrictions in place (e.g., CC0: none; CC-BY-NC-ND, lots, thus considered non-open) and how they are applied (from legislative mandate for all PSI to one-off use for individual reports and datasets at discretion of agency), could have effect similar to eliminating copyright and copyright-like restrictions for PSI, or almost zero effect.

Universal Government License

Governments at various levels have chosen to make up their own licenses rather than use a standard international license. Some of the better reasons for doing so will be eliminated by the forthcoming version 4.0 of 6 of the CC licenses (though again, CC0 has been the best choice, since 2009, and will remain so). But some of the less good reasons (uncharitable characterization: vanity) can’t be addressed by a standard international license, and furthermore seem to be driving the proliferation of sub-sub-national licenses, down to licenses specific to an individual town.

Ideally this extreme license proliferation trend would terminate with mass implementation of one of the above options, though this seems unlikely in the short term. Maybe yet another standard license would help! The idea of an “open government license” which various governments would have a direct role in creating and stewarding has been casually discussed in the past, particularly several years ago when the current proliferation was just beginning, the CC 4.0 effort had not begun, and CC and ODC were not on the same page. Nobody is particularly incented to make this unwieldy project happen, but nor is it an impossibility — due to the relatively small world of NGOs (such as CC and the Open Knowledge Foundation, of which ODC is a project) and government people who really care and know about public licenses, and the possibility their collective exhaustion and exasperation over license details, incompatibility, and proliferation could reach a tipping point into collective action. There’s a lot to start from, including the research that went into CC-BY-4.0, and the OGL UK 2.0, which is a pretty good open license.

But why think small? How many other problems could be addressed simultaneously?

  • Defend the traditional meaning of ‘open government’ by calling the license something else, e.g., Universal/Uniform/Unified Government License.
  • Rallying point for public sector worldwide to commit more firmly and broadly to limiting copyright and copyright-like barriers to use of PSI, more rapidly establishing global norm, and leading to mandates. The one thing to be said for massive PSI license proliferation could be increased commitment from proliferating jurisdictions to use their custom licenses (I know of no data on this). A successful UGL would swamp any increased local commitment due to local vanity licenses through much higher level expectation and mandate.
  • Make the license work well for software (including being approved by the Open Source Initiative), as:
    • Generically “open” licenses are inevitably used for software, whether the steward apparently intends this (OGL UK 2.0) or does not (CC).
    • The best modern permissive license for software (Apache 2.0) is relatively long and unreadable for what it does, and has an discomfiting name (not nearly as bad as certain pro sports organizations, but still); it ought be superseded.
  • Ensure the license works for other domains, e.g., open hardware, which don’t really require domain-specific licenses, are headed down the path of proliferation and incompatibility, and that governments have obvious efficiency, regulatory, security, and welfare interests in.
  • Foster broader “open innovation community” engagement with government and public policy and vice versa, and more knowledge transfer across OIC domains, on legal instruments at the least.
  • Uniform Public License may be a better name than UGL in some respects (whatever the name, it ought be usable by the public sector, and the general public), but Government may be best overall, a tip of the hat to both the vision within governments that would be necessary to make the license succeed, and to the nature of copyright and copyright-like barriers as government regulatory regimes.

National jurisdiction licenses for PSI

A more likely mechanism for license proliferation deceleration and harm reduction in the near term is for governments within a national jurisdiction to use a single license, and follow various license stewardship and use best practices. Leigh Dodds recently blogged about the problem and highlighted this mechanism in a post titled The Proliferation of Open Government Licences.

Sub-national jurisdiction licenses for PSI

Each province/state and sub-jurisdiction thereof, down to towns and local districts, could use its own vanity license. This appears to be the trend in Canada. It would be possible to push further in this direction with multiple vanity licenses per jurisdiction, e.g., various licenses for various kinds of data, reports, and other materials.

Licenses for each PSI dataset or other work

Each and every government dataset or other publication could come with its own bespoke license. Though these licenses would grant permissions around some copyright and copyright-like restrictions, I suspect their net effect would be to heighten copyright and copyright-like restrictions as a barrier to both the use and publication of PSI, on an increased cost basis alone. This extreme highlights one of the downsides of copyright licenses, even unambiguously open ones — implementing, understanding, and using them can be seen as significant cost centers, creating an additional excuse for not opening materials, and encouraging the small number of people who really understand the mechanisms to be jealous and wary of any other reform.

None

Included for completeness.

Privatization of PSI copyright

Until now, I’ve assumed that copyright and copyright-like restrictions are barriers to use of PSI. But maybe there aren’t enough restrictions, or they aren’t allocated to the right entities, such that maximum value is realized from use of PSI. Control of copyright and copyright-like restrictions in PSI could be auctioned off to entities with the highest ability to extract rents from PSI users. These businesses could be government-owned, with various public-private partnerships in between. This would increase the direct contribution of PSI to GDP, incent the creation and publication of more PSI, ensure PSI is maintained and marketed, reaching citizens that can affordneed it, and provide a solid business model for Government 2.0, academia, cultural heritage, and all other publicly funded and publicly interested sectors, which would otherwise fail to produce an optimal level of PSI and related materials and innovations.

Do not let any of the above trick you into paying more attention to possible copyright and copyright-like barriers and licenses than actually doing stuff, especially with PSI, especially with “data”, doubly with “government data”.

I agree with Denny Vrandečić’s paradoxical sounding but correct directive:

Data is free. Free the data!

I tried to communicate the same in a chapter of the Data Journalism Handbook, but lacked the slogan.

Data is free. Free the data!

And what is not data? ☻

Addendum: Entirely by coincidence (in response to a European Commission consultation on PSI, which I had already forgotten about), today posts by Timothy Vollmer for the Communia Association and Creative Commons call out the license proliferation problem and endorse public domain as the default for PSI.

Innovation Pending

Wednesday, November 20th, 2013

Does the U.S. Patent System Stifle Innovation? Pro: Christopher Kelty, Laura Sydell. Con: Jaz Banga, Scott Snibbe. Moderator: Eric Goldman. Video:

The moderator was by far the best performer. Watch above, or read his introduction and audience voting instructions.

The pro side’s opening statement was funny, involving the definition of “stifle”, freedom as the oxygen of innovation, and innovation occurring within the iron lungs of large corporations, due to the patent system. Otherwise they stuck to a narrow argument: the current U.S. patent system is beset by trolls (Sydell was a reporter for When Patents Attack and II) and lawsuits and some would-be inventors do give up after realizing they are in a heavily patented field, ergo, the U.S. patent system stifles innovation.

The con side often seemed to make contradictory arguments that didn’t support their side. At one point the moderator interrupted to ask if they were really making a claim they seemed to be; nobody was phased, though I could swear at various points the pro side was looking incredulously at the con side (the recording is at the wrong angle to really see). But their fundamental argument was that there’s lots of innovation happening, patents and IP generally are American as apple pie, and trolls, while bad, aren’t a big deal for companies like Apple with many billions of dollars, ergo, the U.S. patent system does not stifle innovation.

The audience voted for the con side.

In my previous post noting that this debate was coming up, I concluded with “I hope they also consider equality and freedom.” They did a bit with regard to innovators — “freedom to innovate” and how “small” and “large” innovators fare in the system. But I had in mind expanding the discourse to include the effects of innovation policy on the freedom and equality of all humans.

“Patent” and “stifle” were expertly and humorously defined by Goldman and Kelty, but “innovation” remained undefined. The closest the debate came to exploring the contours of what innovation means, or ought mean, may have been in points made about the triviality of some patents, and the contrast between “small” and “large” innovators. Is innovation ‘done in a fashion that has served to maximize the patent encumbrances’ so it can be controlled by Apple, Microsoft, IBM, Monsanto, et al, the innovation we want?

Both the pro and con sides seemed to dislike patent trolls (while disagreeing on their importance). I wonder if any of the participants (particularly the con side) will endorse, or better yet, sign up for the Defensive Patent License (my discussion)? Or any of the other reforms reviewed by Goldman in Fixing Software Patents?

The debate was part of ZERO1 Garage’s Patent Pending exhibition, open through December 20. Each of the exhibited works is somehow related to a patent held or filed for by the artist.

One patent related to a work is pending, thus the work required an NDA for viewing:

nda

The handful of people I showed this image to were each appalled. But, in the context of the show, I have to admit it is cute. And, perhaps unintended, a critique of patent theory — which claims that patents encourage revelation.

Each of the pieces is interesting to experience. I particularly enjoyed the sounds made and shadows cast by (con side debater) Snibbe’s fan work (controlled by blowing through a smaller fan):

fans

My only disappointment from the exhibition is that there wasn’t a touching sample of these bricks, apparently made in part from fungus:

fungus brick

Bonus link: Discussions On The Abolition Of Patents In The UK, France, Germany And The Netherlands, From 1869. As I’ve mentioned before, these debates are nothing new, though it’s popular even for “reformers” to claim that current innovation policy is somehow mismatched with the “digital age”. The only difference between old and current debates is that the public interest is far more buried in the current ones.