Post Inequality Promotion

Ideas for limiting civic extortion, one in US 2016 federal budget proposal?

Saturday, June 13th, 2015

How to Stop the Stadium Wars (2015-03-17):

Or better yet: The next time the Cobb County Braves decide they’re ready to spin the Wheel of Taxpayer Subsidy, we should all hope the whole practice has become illegal.

That’s what the Obama administration proposed in its budget last month: to end the issuance of tax-free government bonds for professional sports facilities, a practice that has, according to research by Bloomberg, siphoned $17 billion of public money into arenas for NFL, MLB, NBA, and NHL franchises over the last 30 years and cost Americans $4 billion in forgone federal taxes on top of that. It’s too late for residents of Cobb County, but Congress might yet save the rest of us some dough.

After an initial attempt in the 1960s to steer government bonds toward true public works, Congress placed a provision in the 1986 Tax Reform Act that seemed sure to kill tax-free, no-limit stadium deals. It had exactly the opposite effect. Essentially, qualifying projects now need either to serve public uses or to rely on public funding. With pro sports facilities, the former is obviously impossible, so the latter, though politically improbable, has become the way billionaire team owners retain access to cheap government financing. Cities and counties wound up borrowing more for their teams than ever before.

It’s been clear for decades that new stadiums don’t bring the business they promise, let alone enough economic activity to justify the investment. It’s a ruse, but it works because public officials are more worried about being blamed for the loss of a team in the short run than, say, for failing public schools in the long run. And it works because the country has more big cities and rich counties than sports teams in each league, so that even if Cincinnati taxpayers wise up, their counterparts in Austin will step in.

Obama’s budget isn’t the first national political effort to impose federal taxes on stadium deals. New York Sen. Daniel Patrick Moynihan proposed ending the loophole in 1996, and it’s been kicked around in committee since. But with groups like the Koch brothers’ Americans for Prosperity now opposing stadium deals at the local level, Obama’s idea has a chance of gaining bipartisan support.

Additional sources mentioned the proposal in February and March. I do not see more recent mentions. Is it surviving? The linked article mentions some lower status proposals (I’ve bolded the proposals, also above):

One solution, instead, could be to change the way teams operate, either by bringing antitrust suits against the leagues (which sports economist Andrew Zimbalist has suggested) or by allowing cities to exert greater control over their brands (as law professor Mitchell Nathanson has imagined). Should names like the Irving Cowboys, the East Rutherford Giants, and the Orchard Park Bills be forced upon suburban squads? In his 2000 book Leveling the Playing Field, Harvard Law professor Paul Weiler fantasizes about a nationwide union of cities that could lock out pro sports teams to obtain a league-imposed “stadium cap” on taxpayer subsidies, which would effectively end bidding wars.

The article also links to Should we ban states and cities from offering big tax breaks for jobs? (2014-09-15) which includes more general ideas:

Unilateral disarmament is a tough political proposition. As a systemic solution, Funkhouser advocates instead some kind of national law, what he loosely envisions as a domestic equivalent of the Foreign Corrupt Practices Act, which bans bribes of foreign officials to obtain business. At the very least, he says, we should hold accountable officials and chief executives who promise jobs and economic gain — for which a community has paid dearly — that never materialize.

LeRoy doesn’t realistically expect any federal law any time soon. But he suggests a more modest alternative. In the mid 1980s, the federal government threatened to withhold a share of federal highway funds from any state that didn’t enforce a legal drinking age of 21. We should do the same today around economic development incentives, LeRoy says: withhold 10 percent of some coveted federal funding stream — maybe Community Development Block Grants — from states that actively poach jobs from each other.

Add these to my preferred limitations on civic extortion for stadiums (no copyright for events in subsidized venues) and generally (ban based on a modern conception of the U.S. constitution’s import-export clause).

Apparently it is looking more likely that more than one professional sports team will leave Oakland for locations willing to give billionaires greater subsidies. Good riddance! Though I am a little bit sad that the people of other cities that I like (e.g., Los Angeles) will lose out, tempting as it is to blame their politicians and publics.

Speaking of Los Angeles, film location/movie production subsidies are another high visibility extortion that ought be vulnerable to a similar range of targeted or general limitations.

Hello World Intellectual Freedom Organization

Saturday, April 25th, 2015

Today I’m soft launching an initiative that I’ve been thinking about for 20 years, obtained a domain name for in 1998, blogged about once in 2004, and the last few years have been exploring on this blog without naming it. See the first items in my annual thematic doubt posts for 2013 and 2014: “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.”

I call it the World Intellectual Freedom Organization (WIFO).

Read about its theory, why a new organization, proposed activities, and how you can help/get involved.

Why today? Because April 26 is World Intellectual Freedom Day, occupying and displacing World Intellectual Property Day, just as intellectual freedom must occupy and displace intellectual property for a good future. Consider this 0th World Intellectual Freedom Day another small step forward, following last year’s Without Intellectual Property Day.

Why a soft launch? Because I’m eager to be public about WIFO, but there’s tons of work to do before it can properly be considered launched. I’ve been getting feedback from a handful of people on a quasi-open fellowship proposal for WIFO (that’s where the activities link above points to) and apologize to the many other people I should’ve reached out to. Well, now I’m doing that. I want your help in this project of world liberation!

Video version of my proposal at the Internet Archive or YouTube. My eyes do not lie, I am reading in an attempt to fit too much material in 5 minutes.

I’ll probably blog much less here about “IP” and commons/free/libre/open issues here from now on, especially after opening a WIFO blog (for now there’s a Discourse forum; most of the links above point there). Not to worry, I am overflowing with idiosyncratic takes on everything else, and will continue to post accordingly here, as much as time permits. ☻

Be sure to celebrate the 0th World Intellectual Freedom Day, even if only momentarily and with your lizard brain.

Apple watch

Monday, March 9th, 2015

Apple Watch official logoApple epitomizes the future we’re choosing by way of treating knowledge as property: gross inequality and hierarchical control, but amazing, such that it is hard to imagine a different arrangement. (I argue very different arrangements concerning knowledge are possible and some would produce much better outcomes — freedom and equality — and some would produce much worse, but still be considered amazing, as they would be relative to the past — knowledge policy is a point of incredible leverage in either direction.)

I don’t watch Apple closely at all, but occasionally a headline catches my eye, as two have recently.

  • Android share of smartphone profits plummets to 11 percent. 89% of smartphone profits go to Apple, despite shipping only 19.7% of smartphones. Of course there are other contributing factors, but these numbers suggest to me something about the surplus obtained by producers and consumers in the case of proprietary (iOS) and open source (Android) operating systems, and the resulting concentration of wealth toward owners of the former.
  • Apple Is Now More Than Double the Size of Exxon—And Everyone Else. That’s by market capitalization, around $750 billion. As the article notes, IBM in 1983-1985 had more than double the market cap of any other company. Knowledge as property driven wealth concentration is not at all new, but I suspect it is increasing as knowledge becomes unambiguously the commanding heights and we shift from an industrial to a knowledge economy (transition captured in pithy phrases such as “data is the new oil” and “software is eating the world”) and knowledge is increasingly subject to various freedom infringing (intellectual property) regimes, and I suspect that more people are recognizing this.

In the more people department, I’ve noticed in the last day:

Now these two are largely making stereotypical contemporary political points for or against state activity respectively (the latter by proxy of claiming Democrats don’t really care about inequality) and not demanding a fundamental shift away from property as the regime governing knowledge (the former demands a ‘golden share’ of intellectual property derived profits for the state). But I’d be very happy to see both “sides” embrace such a shift. Demanding that government and government-funded knowledge not be treated as property is a good start.

My ironic edit of 5 reasons you should never buy an Apple Watch, pointing out that control and inequality appear to be marvelous.

Annual thematic doubt 2

Tuesday, February 17th, 2015

My second annual thematic doubt post, expressing doubts I have about themes I blogged about during 2014.

commons ⇄ freedom, equality ⇄ good future

Same as last year, my main topic has been “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.”

Rather than repeating the three doubts I expressed last year under the heading “intellectual freedom” (my evaluation of these has not much changed), I will take the subject from a different angle: the “theory of change” I have been espousing. This theory is not new to me. Essentially it is what attracted me to following the free software movement circa 1990 — its potential of extensive, pro-freedom socio-economic reform from the bottom up. That and wanting to run a unix-like on my computer — a want satisfied without respect to freedom as soon as I could use a Sun workstation at work, and for many years now would have been satisfied by OS X. I never cared very much about being able to read, modify, and share all of the software on my computer — the socio-economic implications of those capabilities make them interesting, to me. The claimed ends of the theory are in the ‘for a good future’ slogan I’ve occasionally used at least since 1998. I occasionally included the theory in blog posts (2006) and presentations (2008). Much of my ‘critical cheering’ last year (doubt) and before has largely been about my perhaps unreasonable wish that ‘free/open’ organizations and movements would take the theory I do and act as I think follows. I could easily be wrong on the theory or best actions it implies. Accordingly, I ratcheted down critical cheering in 2014; hopefully most but not all of what remained was relatively fun or novel. Instead I focused more sharply on the theory, e.g., in Sleepwalking past Freedom’s Commons, or how peer production could increase democracy, equality, freedom, and innovation, all of them!

The theory could be attacked from a number of angles — I’d love to see that done and learn of new vulnerabilities. For example, commons might not significantly affect freedom and equality, these may not be the right values, and one might consider a ‘good future’ to be one with maximum hierarchy, spectacle, even war (I repeatedly argue that future tech and culture will be marvels in most plausible futures, and that is a reason to reject ones that do not have freedom and equality as top values, but also something that makes it hard to see how a future — or present — could be different or better with more knowledge economy/policy-driven freedom and equality). But this isn’t a cheap refutation post (see below) and I don’t have very practical doubts about those values and what they imply constitutes a good future.

But I do have practical doubts about the first leg of the theory. Summary of that leg before getting to doubts: Commons-based knowledge production simultaneously destroys rents dependent on freedom infringing regimes, diminishing the constituency for those regimes, grows the constituency and policy imagination for freedom respecting regimes, and not least, directly increases freedom and equality.


  • Effects could be too small to matter, or properly attributed to generational or other competition among firms, not commons-based production. Consider Wikipedia, a success of commons-based production if there is one. Such success may not be possible in other sectors, especially ones that command top policy attention (drugs and movies) — policy imagination has not been increased. The traditional encyclopedia industry was already mostly destroyed by Microsoft Encarta when Wikipedia came along. The encyclopedia industry was not a significant constituency for freedom infringing regimes, so its destruction matters not for future policy. Encyclopedias were readily accessible at libraries, vastly more useful info of the sort found in encyclopedias is accessible online now, excluding Wikipedia, and ‘freedoms’ to modify and distribute are just not relevant nearly all humans.
  • I claim that the best knowledge policy reform is that which favors commons and that the reforms traditionally proposed by copyright and patent reformers are relatively futile because such proposals if implemented would not significantly change the knowledge economy to produce freedom and equality nor grow the constituencies for such changes — rather they are just about who, how, and for how much the outputs of production under freedom infringing regimes may be used — so-called balance, not the tilt I demand. But perhaps the usual set of reform proposals is the best that can be hoped for, especially given decades of discourse and organization-building around those proposals, and almost none about commons-favoring reform. Further, perhaps the usual set of reform proposals is best without qualification — commons-based production is a culturally marginal (in software; wholly irrelevant in most other sectors) arrangement that ought be totally ignored by policy.
  • Various (sometimes semi-) free/open movements within various sectors (e.g., software, education, research publication) are having some policy successes, without (as far as I know) usually considering themselves to be as or more central to shaping knowledge policy as usual things fitting under ‘copyright reform’ and ‘patent reform’ but this could be just what needs to happen. The important thing is that commons-based knowledge production entities act to further their interests with minimal distance from current policy discourse, not that they have any distracting and possibly discrediting theory about doing so relative to overall knowledge policy.

Only the first of these gives me serious pause, though my discounting the last two might be a matter of (dis)taste — my feeling is that most of the people involved thoroughly identify with the trivia of copyright, patent, and similar law, even if they think those laws need serious reform, and act as if commons-based production is something to be protected from reform in the bad direction, but not at all central. Sadly if my feeling is accurate, the second and third doubts probably ought give me more pause than they do.

Despite these doubts, the potential huge win-win (freedom and equality, without conflict) of reorienting the knowledge economy and policy around commons-based production makes robust discourse (at the least) on this possibility urgent, even if tilt probability is low. One of the things that makes me favor this approach is that reform can be very incremental — indeed, it is by far the most feasible reform of any proposed — we just need a lot more of it. Push-roll towards tilt!

The most damning observation is perhaps that I’m only talking, and mostly on this very blog. I should change my ways, but again, this is not a cheap refutation post.

Software Freedom/Futurism/Science Fantasy

I recently wrote that “it’s much easier to take software freedom as a serious issue of top importance if one has a ‘futurist’ bent. This will also figure in a forthcoming post from me casting doubt on everything in this post and the rest from 2014.”

How important are computers to human arrangements, and how large is the range of plausible computer-involved arrangements, and how much can those realized be changed? Should anyone besides programmers and enthusiasts care about software specifically, any more or less than they care about the conditions under which any tool is created and distributed? (Contrast with other tools would be good here, but I’ll leave for another time.)

The vast majority of people seem to treat software as any other tool — they want it to work as well as possible, and to be as cheap as possible, the only difference being that their intuitions about quality and cost of software may be worse than their intuitions for the quality and cost of, for example, bridges. Arguably nearly everyone has been and perhaps still is correct.

But one doesn’t need to be much of a futurist to see software getting much more important — organizations good at using software ‘eating’ the lunches of those less good at using software, software embedded in everything or designing everything (and anything else being obsolete), regulating and mediating every sort of arrangement — with lots of plausible variation as to how this happens.

Now the doubt: does future-motivated interest in software freedom share more with interest in science fiction (i.e., moralistic fantasy) or with interest in future studies and the many parts of various social sciences that aim to improve systems going forward in addition to understanding current and past ones? If the latter, why is software freedom ignored by all of these fields? Possibly most people who do think software is becoming very important are not convinced that software freedom is an important dimension to consider. If so (I would love to see some kind of a review on the matter) it would be most reasonable to follow the academic consensus (even if it is one of omission; that consensus being of software freedom not interesting or important enough to investigate) and if one cares about the ethical dimensions of software, focus instead on the ones the consensus says are important.

Two additional posts last year in which I claim software freedom is of outsized and underappreciated importance (of course I don’t usually restrict myself to only software, but consider software a large and growing part of knowledge embodying cumulative innovation, and of the knowledge economy leading to more such accumulation) and some of many from years past (2006, 2006, 2007, 2007). The first from 2006 highlights the most obvious problem with the future. I had forgotten about that post when mentioning displacement of movies by some other form as the height of culture in 2013 — one has to squint to see such displacement even beginning yet. The second isn’t about the future but is closely related: alternative history.

Uncritical Cheering

I feared that many of my posts last year were uncritical cheering (see critical cheering above and last year). Looking back at posts where I’m promoting something, I have usually included or at least hinted at some amount of criticism (e.g., 1 2). I don’t feel too bad. But know that most of the things I promote on my blog are very likely to fail or otherwise be inconsequential — if they were sufficiently mainstream and established they’d be sufficiently covered elsewhere, and I likely wouldn’t bother blogging about them.

One followup: I cheered the publication of the first formally peer-reviewed and edited Wikipedia article in Open Medicine — a journal which has since ceased publishing.

Freeway 980

I continue to blog about removing freeway 980, which cuts through the oldest parts of Oakland. Doubt: I don’t know whether full removal would be better (at least when considering feasibility) than capping the portion of 980 which is below grade. I intended to read about freeway capping, come to some informed opinion, and blog about it. I have not, but supposedly Oakland mayor Libby Schaaf has mentioned removing 980. Hopefully that will spur much more qualified people to publish analyses of various options for my reading pleasure. ConnectOakland is a website dedicated to one removal/fill scenario.


I’m satisfied enough with the doubt in my two posts about Mozilla’s leadership debacle, but I’ll note apparent tension between fostering ideological diversity and shunning people who would deny some people basic freedoms. I don’t think this one was fairly clear cut, but there are doubtless far more difficult cases in the world.

Instead of doubt, I’d like to clarify my intention with two other posts: thought experiment/provocation, serious demand.


I fell further behind, producing no new dedicated collections of refutations of my 8+ year old posts. My very next post will be one, but as with previous such posts, the refutations will be cheap — flippant rather than drilling down on doubts I may have gained over the years. Again these observations (late, cheap) are what led me last year to initiate a thematic doubt post covering the immediately previous year. How was this one?

Happy GNU Year & Public Domains Day

Thursday, January 1st, 2015

This Public Domain Day I recommend watching a 2005 lecture or corresponding 2006 journal article Enriching Discourse on Public Domains (summary) by Pamela Samuleson.

The video was only published by Duke Law (which also hosts the main U.S.-centric public domain day page) to their YouTube channel a month ago. Based on the first version (2013-01-02) of my attempted summary, I read the paper the day after my public domain day post 2 years ago, Public Domains Day, which riffed on dictionary definitions.

Samuelson outlines 13 meanings found in law review articles (see the summary for a quick listing) and points out some benefits and one cost of accepting multiple definitions:

+ avoid disputes about “the” correct or one true definition
+ broadened awareness of public domains and public domain values
+ facilitation of context-sensitive discussion
+ enable nuanced answers to questions about various public domains (eg shrinking or not?)
+ possibility of gaining insight into public domain values through consideration of different public domains (deemed most important by author)
– possible confusion concerning what a communicator means by “public domain”

In the lecture Samuelson says it took a long time for her to accept multiple definitions, in part after realizing that other fields such as property law successfully use multiple context-dependent definitions. I’d like to add a plus to the list:

+ language is fun, play with it!

Hectoring people for not using the deemed-by-you to be the one true definitions of the correct words is the opposite of fun. I do tend to use nonstandard words and phrases such as “copyrestriction”, “inequality promotion”, “intellectual freedom infringement”, “intellectual parasite”, and “intellectual protectionism” in order to make a point and have fun, but have descended to hectoring at times (and probably have been perceived as having done so more). I will from now make more of an effort to use terms other people use, or when not, give a fun and non-hectoring rationale. In the meantime, I will say that though I agree with many individual points made concerning word avoidance, I find such neither fun nor welcoming nor helpful in convincing anyone that freedom and equality need to be the dominant objectives of information policy.

At the beginning of the lecture Samuelson is given an introduction lauding her work, initially lonely but presented in 2005 as central, toward making intellectual property scholarship discourse consider the value of the various public domains and costs of expanding (scope, duration, protections) intellectual property rights. I have long been a fan of Samuelson’s work, but the introduction served to remind me of how unsatisfied I am with what still constitutes the liberalizing reform (which itself is possibly central, but I am too ignorant of the breadth of IP scholarship, which surely includes much so-called “maximalism”, to say) line:

  • acknowledgement that we can say little about the net benefits of IP
  • but it is surely “unbalanced” toward protection now
  • so it needs balancing and tuning
  • but of course IP is crucial so genuflect to drugs and movies
  • (largely through omission) commons are a band-aid and not central to reform
  • (largely through omission) freedom and equality not the central objectives

Of course not, as then we would have commons scholarship, not IP scholarship. I contend that pro-commons policy and products are the most feasible, sustainable, and overall best reforms and that freedom and equality should be the dominant objectives — I want the innovations and entertainment produced by a freedom respecting regime — surely meaning substantially less monopoly, hopefully a bit less embarrassing spectacle.

Image from last year, with ‘s’ added to ‘domain’; I’ve written enough recently about ‘GNU’ (signifying software freedom, not the GNU project strictly speaking).

Happy GNU Year & Public Domain Days

Do not pay copyright holders, for a good future

Sunday, September 28th, 2014

The Unrepentant Bootlegger profiles Hana Beshara, a founder of NinjaVideo, who spent 16 months in prison for defying censorship. Cut to the logic of censorship (emphasis added):

People watch more paid, legal content than ever, but they also continue to download huge amounts of illegal content. “Piracy is putting pressure on antiquated business models, which isn’t necessarily a bad thing,” said Brett Danaher, an economics professor at Wellesley College who studies Internet piracy. “But the prevalence of piracy shows that people are growing up in a culture of free, and that is not good for the future of entertainment, either.”

That we should be concerned for the future of entertainment, at all, is itself bizarre. Freedom and equality should absolutely trump incentivizing a surfeit of entertainment. If we must choose between spectacle and communications, spectacle should be destroyed. We do not need to choose. We can destroy the censorship regime, but entertainment, including for better or worse some of the spectacle variety, will continue to exist and be produced in vastly greater quantities and quality than it is feasible for anyone to even begin to fully appreciate in a lifetime. If the spectacle portion does not include projects with budgets of hundreds of millions of dollars, that is OK — we will love what culture does get produced, as that love and cultural relevance is largely based on being immersed in the culture that exists — we love the culture we’re in. If that culture is less dominated by U.S.-based high investment productions, so much the better for the U.S. and the world.

Another policy significant quote from the article:

Peter Eckersley, technology projects director at the Electronic Frontier Foundation […] said the law should shift its focus to making sure that copyright holders are paid for their work, rather than trying to stymie how people gain access to it. […] He suggested a legal framework to retire the “exclusive rights” aspect of copyright law that requires permission to publish — and that allows copyright holders to seek exorbitant damages from infringers — and move toward a system that requires sites and people who make money from another’s work to share any profits. Solutions like these, Mr. Eckersley says, would create different priorities that go beyond chasing small-time pirates like Ms. Beshara and her colleagues.

No, copyright holders should not be paid. Any payment by virtue of holding copyright only makes the censorship regime self-perpetuating. Funding of entertainment should be completely decoupled from the censorship regime of copyright. I understand the appeal of paid speech over permissioned speech (of course a tax is usually better than a prohibition, and that applies to privatized regimes as well), but neither is free speech. The paid speech approach would indeed create priorities that go beyond chasing small-time pirates (note Beshara earned $210k over 3 years; note also existing paid speech regimes which involve monitoring and shakedown of small-time restaurants) — it would invite further pervasive and destructive surveillance of communications in the interest of ensuring copyright holders get paid. It is appalling that EFF is still willing to invite sacrifice of everything they fight for at the alter of paying copyright holders. I don’t blame the EFF specifically; this just shows how deeply intellectual parasitism has burrowed in general. Intellectual parasites (which includes most reformers, including me often) need to fully shift to being commons policy advocates (and scholars).

Regarding people and projects like Hana Beshara and NinjaVideo, I’m ambivalent. Performing unpaid marketing and price discrimination services for the censorship industry is distasteful and harmful. But sharing culture (putting the regime aside) is tasteful and helpful. There is too little known about informal circulations and their effects, this lack of knowledge itself a collateral damage of the regime (compare being able to study cultural flows and surveillance required for paid speech; they are of different orders) and far, far, far too little direct competition for the regime.

Proprietary profitability as a key metric for open access and open source

Thursday, August 7th, 2014

Glyn Moody in Beyond Open Standards and Open Access:

Like open source, open access is definitely winning, even if there is some desperate rearguard action by the publishers, who are trying to protect their astonishing profit margins – typically 30-40%.

No doubt open source and open access have progressed, but the competition maintaining astonishing profit margins contradicts “definitely winning.” For publishing, see Elsevier, £0.8b profit on £2.1b revenue, and others. For software most pertinent to Moody’s post (concerning Open Document Format), see Microsoft’s business division, $16b profit on $24b revenue.

These profits coupled with the slow relative progress of open source and open access give proprietary vendors huge range to not only take “desperate rearguard action” but also to create new products and forms of lock-in with which the commons is continually playing catch-up.

We know what the commons “definitely winning” looks like — Linux (server software) and Wikipedia (encyclopedias) — and it includes proprietary vendor profit margins being crushed, most going out of business, and those remaining transitioning to service lines of business less predicated on privatized censorship.

When libraries begin mass cancellation of toll access journal subscriptions and organizations of all sorts cancel Microsoft, Adobe, and similar software subscriptions, then we can consider whether open access and open source are definitely winning. Until then the answer is definitely no.

As for what’s next for open standards and open access (Moody suggests further ODF mandates, which would be fine), the obvious answer is open source. It’s what allows realization of the promise of open standards, and the cancellation of Microsoft subscriptions. It’s also what’s next for academic publishing and everything else — what is not software will be obsolete — though cancellation of those toll access subscriptions is going to require going back to basics.

Free/open/commons advocates should consider destruction of proprietary competition profitability a key aim and metric of success or lack thereof, for both open products and policy. This metric has several benefits:

  • Indicates relative progress. Any non-moribund project/movement can make seeming progress, blind to different and potentially much greater progress by competition.
  • Implicates role of knowledge economy and policy in increasing or decreasing equality (of income and wealth, not just access).
  • Hard numbers, data readily available.
  • It’s reasonable to multiply destruction of proprietary profits when characterizing gains (so as to include decrease in deadweight loss).

“Open policy” is the most promising copyright reform

Thursday, June 26th, 2014

Only a few days (June 30 deadline) for applications to the first Institute for Open Leadership. I don’t know anything about it other than what’s at the link, but from what I gather it involves a week-long workshop in the San Francisco area on open policy and ongoing participation in an online community of people promoting open policies in their professional capacities, and is managed by an expert in the field, Timothy Vollmer. Read an interview with Vollmer (wayback link to spare you the annoying list-gathering clickthrough at the original site, not least because its newsletter is an offender).

The institute and its parent Open Policy Network define:

Open Policy = publicly funded resources are openly licensed resources.

(Openly licensed includes public domain.)

Now, why open policy is the most promising knowledge regulation reform (I wrote “copyright” in the title, but the concept is applicable to mitigating other IP regimes, e.g., patent, and pro-commons regulation not based on mitigating IP):

  • Most proposed reforms (formalities can serve as an example for each mention following) merely reduce inefficiencies and embarrassments of freedom infringing regimes in ways that don’t favor commons-based production, as is necessary for sustainable good policy. Even if not usually conceptualized as commons-favoring, open policy is strongly biased in that direction as its mechanism is mandate of the terms used for commons-based production: open licenses. Most proposed reforms could be reshaped to be commons-favoring and thinking of how to do so a useful exercise (watch this space) but making such reshaping gain traction, as a matter of discourse let alone implementation, is a very long-term project.
  • The concept of open policy is scalable. There’s no reason as it gains credence to push for its expansion to everything receiving public or publicly interested support, including high and very low culture subsidy. At the extreme, the only way to avoid being subject to some open policy mandate would be to create restricted works in an IPer colony, isolated from the rest of humanity.
  • In order to make open policy gain much more credence than it has now, its advocates will be forced to make increasingly sophisticated public policy arguments to support claims that open policy “maximizes public investment” or to shift the object of maximization to freedom and equality. Most proposed reforms, because they would only reduce inefficiency and embarrassment, do not force much sophistication, leaving knowledge regulation discourse rotting in a trough where economists abandoned it over a century ago.
  • Open policy implementation has the potential to destroy the rents of freedom infringing industries. For sustainable good policy it is necessary to both build up the commons as an interest group and diminish interest groups that depend or think they depend on infringing freedom. It is possible for open policy to be gamed (e.g., hybrid journal double dipping). As troubling as that is, it seems to me that open policy flips which side is left desperately clawing for loopholes contrary to the rationale of policy. Most reform proposals at least implicitly take it as a given that public interest is the desperate side.
  • Open policy does not require any fundamental changes to national law or international treaties, meaning it is feasible, now. Hopefully a few reformists have generally grasped the no-brainer concept that a benefit obtained today is more valuable than one obtained in the future, e.g., in 95 years. It also doesn’t mean that open policy is merely a “patch” in contrast the “fixes” of most proposed reforms — which aren’t fixes anyway, but rather mitigations of the worst inefficiencies and embarrassments of freedom infringing regimes. If open policy is a patch, it is a one that helps the body of knowledge regulation to heal, by the mechanisms above (promoting commons production and discourse, diminishing freedom infringing interests).

In my tradition of critical cheering, consider the following Open Policy Network statement:

We have observed that current open policy efforts are decentralized, uncoordinated and insular; there is poor and/or sporadic information sharing.

As illustrated by the lack of the Open Source Definition or any software-centric organizations on Open Policy Network lists of its guiding principles and member organizations. Fortunately software is mentioned several times, for example:

If we are going to unleash the power of hundreds of billions of dollars of publicly funded education, research, data, and software, we need broad adoption of open policies.

Hopefully if the Open Policy Network is to become an important venue for moving open policy forward, people who understand software will get involved (by the way, one of the ways “publicly funded” is scalable is that it properly includes procurement, not only wholly funded new resources), e.g., FSFE and April. I know talking about software is scary — because it is powerful and unavoidable. But this makes it a necessity to include in any serious project to reform the knowledge economy and policy. Before long, everything that is not software or suffused with software will be obsolete.

API commons

Thursday, May 29th, 2014

Notes for panel The API Copyright Emergency: What’s Next? today at API Con SF. The “emergency” is the recent decision in Oracle v. Google, which I don’t discuss directly below, though I did riff on the ongoing case last year.

I begin with and come back to a few times Creative Commons licenses as I was on the panel as a “senior fellow” for that organization, but apart from such emphasis and framing, this is more or less what I think. I got about 80% of the below in on the panel, but hopefully still worth reading even for attendees.

A few follow-up thoughts after the notes.

Creative Commons licenses, like other public licenses, grant permissions around copyright, but as CC’s statement on copyright reform concludes, licenses “are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.” In the context of APIs, default policy should be that independent implementation of an API never require permission from the API’s designer, previous implementer, or other rightsholder.

Without such a default policy of permission-free innovation, interoperability and competition will suffer, and the API community invites late and messy regulation at other levels intending to protect consumers from resulting lock-in.

Practically, there are things API developers, service providers, and API consumers can do and demand of each other, both to protect the community from a bad turn in default policy, and to go further in creating a commons. But using tools such as those CC provides, and choosing the right tools, requires looking at what an API consists of, including:

  1. API specification
  2. API documentation
  3. API implementations, server
  4. API implementations, client
  5. Material (often “data”) made available via API
  6. API metadata (e.g, as part of API directory)

(depending on construction, these could all be generated from an annotated implementation, or could each be separate works)

and what restrictions can be pertinent:

  1. Copyright
  2. Patent

(many other issues can arise from providing an API as a service, e.g., privacy, though those are usually not in the range of public licenses and are orthogonal to API “IP”, so I’ll ignore them here)

1-4 are clearly works subject to copyright, while 5 and 6 may or may not be (e.g., hopefully not if purely factual data). Typically only 3 and 4 might be restricted by patents.

Standards bodies typically do their work primarily around 1. Relatively open ones, like the W3C, obtain agreement from all contributors to the standard to permit royalty-free implementation of the standard by anyone, typically including a patent license and permission to prepare and perform derivative works (i.e., copyright, to extent such permission is necessary). One option you have is to put your API through an existing standards organization. This may be too heavyweight, or may be appropriate yet if your API is really a multi-stakeholder thing with multiple peer implementations; the W3C now has a lightweight community group venue which might be appropriate. The Open Web Foundation’s agreements allow you to take this approach for your API without involvement of an existing standards body​. Lawrence Rosen has/will talk about this.

Another approach is to release your API specification (and necessarily 2-4 to the extent they comprise one work, ideally even if they are separate) under a public copyright license, such as one of the CC licenses, the CC0 public domain dedication, or an open source software license. Currently the most obvious choice is the Apache License 2.0, which grants copyright permission as well as including a patent peace clause. One or more of the CC licenses are sometimes suggested, perhaps because specification and documentation are often one work, and the latter seems like a “creative” work. But keep in mind that CC does not recommend using its licenses for software, and instead recommends using an open source software licenses (such as Apache): no CC license includes explicit patent permission, and depending on the specific CC license chosen, it may not be compatible with software licenses, contrary to goal of granting clear permission for independent API implementation, even in the face of a bad policy turn.

One way to go beyond mitigating “API copyrightability” is to publish open source implementations, preferably production, though reference implementations are better than nothing. These implementations would be covered by whatever copyright and patent permissions are granted by the license they are released under — again Apache 2.0 is a good choice, and for software implementation CC licenses should not be used; other software licenses such as [A]GPL might be pertinent depending on business and social goals.

Another way to create a “thick” API commons is to address material made available via APIs, and metadata about APIs. There, CC tools are likely pertinent, e.g., use CC0 for data and metadata to ensure that “facts are free”, as they ought be in spite of other bad policy turns.

To get even thicker, consider the architecture, for lack of a better term, around API development, services, and material accessed and updated via APIs. Just some keywords: Linked Open Data, P2P, federation, Lots of Copies Keep Stuff Safe, collaborative curation.

The other panelists were Pamela Samuelson, Lawrence Rosen, and Annette Hurst, moderated by David Berlind.

I’m fairly familiar with Samuelson’s and Rosen’s work and don’t have comments on what they said on the panel. If you want to read more, I recommend among Samuelson’s papers The Strange Odyssey of Software Interfaces and Intellectual Property Law which shows that the “API copyright emergency” of the panel title is recurrent and intertwined with patent, providing several decades of the pertinent history up to 2008. Contrary to my expectation in the notes above, Rosen didn’t get a chance to talk about the Open Web Foundation agreements, but you can read his 2010 article Implementing Open Standards in Open Source which covers OWF.

Hurst is a lawyer for Orrick representing Oracle in the Oracle v. Google case, so understandably advocated for API copyright, but in the process made several deeply flawed assertions could have consumed the entire duration of the panel, but Berlind did a good job of keeping the conversation moving forward. Still, I want to mention two high level ones here, my paraphrases and responses:

Without software copyright the software economy would go away. This is refuted by software development not for the purposes of selling licenses (which is the vast majority of it), especially free/open source software development, and services (e.g., API provision, the source of which is often never published, though it ought be, see “going beyond” recommendations above). Yes the software economy would change, with less winner-take-all monopoly and less employment for Intellectual Parasite lawyers. But the software economy would be huge and very competitive. Software is eating the world, remember? One way to make it help rather than pejoratively eat the world is to eject the parasites along for the ride.

Open source can’t work without software copyright. This is refuted by 1) software source sharing before software copyright; 2) preponderance of permissively licensed open source software, in which the terms do not allow suing downstream developers who do not share back; 3) the difficulty of enforcing copyleft licenses which do allow for suing downstream developers who do not share back; 4) the possibility of non-copyright regulation to force sharing of source (indeed I see the charitable understanding of copyleft as prototyping such regulation; for perspective on the Oracle v. Google case from someone with a more purely charitable understanding of copyleft, see Bradley Kuhn); and 5) demand and supply mechanisms for mandating sharing of source (e.g., procurement policies, distribution policies such as Debian’s).

These came up because Hurst seemed to really want the audience to conflate software copyright in general (not at issue in the case, settled in a bad place since the early 1980s) and API copyright specifically. Regarding the latter, another point which could have been made is the extent to which free/open source software has been built around providing alternatives to proprietary software, often API-compatible. If API copyright could prevent compatible implementation without permission of any sort, open source, competition, and innovation would all be severely hampered.

There is a recent site called API Commons, which seems to be an API directory (Programmable Web, which ran the conference, also has one). My general suggestion to both would be to implement and facilitate putting all elements of APIs listed above in my notes in the commons. For example, they could clarify that API metadata they collect is in the public domain, publish it as Linked Open Data, and encourage API developers and providers they catalog to freely license specifications, documentation, implementations, and data, and note such in the directories.

In order to get a flavor for the conference, I listened to yesterday morning’s keynotes, both of which made valiant attempts to connect big picture themes to day to day API development and provision. Allow me to try to make connections back to “API commons”.

Sarah Austin, representing the San Francisco YMCA, pointed out that the conference is near the Tenderloin neighborhood, the poorest in central San Francisco. Austin asked if kids from the Tenderloin would be able to find jobs in the “API economy” or would they be priced out of the area (many tech companies have moved nearby in the last years, Twitter perhaps the best known).

Keith Axline claimed The Universe Is Programmable. We Need an API for Everything, or to some extent, that learning about the universe and how to manipulate it is like programming. Axline’s talk seemed fairly philosophical, but could be made concrete with reference to the Internet of Things, programmable matter, robots, nanobots, software eating the world … much about the world will indeed soon be software (programmable) or obsolete.

Axline’s conclusion was in effect largely about knowledge policy, including mourning energy wasted on IP, and observing that we should figure out public support for science or risk a programmable world dominated by IP. That might be part of it, but keeps the focus on funding, which is just where IP advocates want it — IP is an off-the-balance-sheets, “free” taking. A more direct approach is needed — get the rules of knowledge policy right, put freedom and equality as its top goals, reject freedom infringing regimes, promote commons (but mandating all these as a condition of public and publicly interested funding is a reasonable starting place) — given these objectives and constraints, then argue about market, government, or other failure and funding.

Knowledge policy can’t directly address the Austin’s concerns in the Tenderloin, but it does indirectly affect them, and over the long term tremendously affect them, in the Tenderloin and many other places. As the world accelerates its transition from an industrial to a knowledge dominated economy, will that economy be dominated by monopoly and inequality or freedom and equality? Will the former concentrations continue to abet instances of what Jane Jacobs called “catastrophic money” rushing into ill-prepared neighborhoods, or will the latter tendencies spread the knowledge, wealth, and opportunity?

Without Intellectual Property Day [edit]

Saturday, April 26th, 2014
Without Intellectual Property Day by Parker Higgins of the EFF is quite good, and released under CC-BY. Clearly deserving of adaptation. Mine below, followed by a diff.

April 26 is the day marked each year since 2000 by the World Intellectual Property Organization (WIPO) as “World Intellectual Property Day”, in which WIPO tries to associate its worldwide pushes for more enclosure with creativity.

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine 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’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.


The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

wdiff -n eff-wipd.html eff-wipd-edit.html |colordiff |aha -w > eff-wipd-diff.html
[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-] {+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-] {+WIPO tries to associate its <a href="">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="">domestic policy laundering</a>, but we agree that celebrating-] {+enclosure</a> with creativity.</p>+}
{+<p>Celebrating+} creativity is a good [-thing.</p>-]
[-<p>As the saying goes, though:-] {+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-] {+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-]
[-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-] {+laws: to+} the [-works-] {+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-] {+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-]
[-<p>It's-] {+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-] {+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying—the comedy community, to take one example, <a href="">will call out people</a> who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-] {+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-] {+pioneered+} the [-idea-] {+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-] {+building a commons. The digital commons+} idea [-further-] {+is being pushed in more areas+} than ever [-before.-] {+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with—Wikipedia-] {+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-] {+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href="">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-] {+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-] {+its first feature length film, <em><a href="">Gooseberry</a></em>.</p>+}
[-<p>As the Constitution tells us,-]
{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-] {+is that they can be+} calibrated [-correctly,-] {+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-]
[-<p>But it's also-] {+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="">equality</a>.</p>+}
{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-] {+the+} goal [-as well. Promoting-] {+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission—it's good to know that it doesn't have-] {+innovation. We must continue+} to [-come through systems-] {+push for both practice and <a href="">policy+} that [-can-] {+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-] {+called World Intellectual Freedom Day.</p>+}