Post Intellectual Protectionism

Lessig is the most patriotic candidate

Monday, October 12th, 2015

Almost always for me ‘patriot’ is a term of derision, but here I mean something specific: putting one’s preferred issues and interests to the side to focus on fixing the relevant institutions, in this case of the state. To make the state stronger (as in less degenerate, not necessarily huger). To make collective action work better. To steer the system away from N-party competitive distribution of public spoils by fixing the system rather than blaming particular groups of outsiders or insiders (i.e., what usually passes as ‘patriotic’).

By that specific meaning, Lawrence Lessig is by far the most patriotic candidate for U.S. temporary dictator. I hope he gets into more polls (and prediction markets) and the debates. In Republic, Lost (2011; pdf; my notes on the book below) Lessig evaluates the chances of a presidential campaign like the one he is running: “Let’s be wildly optimistic: 2 percent.” That sounds fair, but the campaign still makes sense, for building name recognition for a future campaign or for injecting non-atavistic patriotism into the debate (so let him).

The campaign worked on me in the sense that it motivated me to read Republic, Lost (which had been in my virtual ‘fullness of time’ pile). I hadn’t followed Lessig’s anti-corruption efforts closely because I was burned out from working for him at Creative Commons and based on headlines, they looked like a turbocharged version: grand and good basic ideas (roughly fixing knowledge regulation and fixing democracy, respectively), politician-like (now actual politician) total campaigning (both for money and to convince the public; in the short term the free culture movement is surely poorer in both respects relative to a world in which Lessig did not shift focus), and constant startup-like pivoting and gimmicks that seemed to me distractions from the grand and good ideas (but no doubt to him are essential innovations). There are many reasons Creative Commons was not a venue ripe for experimentation, and it seems to (I’m barely involved anymore) have mostly settled into doing something close to commons coordination work I believe it is most suited to, including work on license interoperability and supporting open policy. But in hindsight a venue or series of them (cf. Change Congress, Fix Congress First, Mayday.US, NHRebellion, RootStrikers…) built for experimentation might have made for a more contribution to the [semi]free culture world than did a conservatism-inducing (appropriately) license steward (of which there were already plenty). All of which is to say that I’m looking charitably upon Lessig’s many political experiments, including the various novel aspects of his current campaign, though I can understand how they (the means, not the ends of fixing democracy) could be interpreted as gimmicks.

One of my takeaways from Republic, Lost is that the referendum candidacy (Lessig intends to resign after passing one bill, making his candidacy a referendum for that bill) is sort of an anti-gimmick, a credible commitment mechanism, without which any candidate’s calls for changing the system ought be interpreted as hot air. In the book Lessig expresses deep disappointment with Obama, who ran promising fundamental change, which he then failed to deliver or even really attempt, with the consequence of corrupting the non-system-changing reforms he has pushed through (e.g., health care reform contains massive giveaways to drug and insurance industries).

Experimentation with novel commitment mechanisms and anti-gimmicks is great, so I heartily applaud Lessig’s referendum candidacy. But so far it seems to have backfired: the anti-gimmick is interpreted as a gimmick and (not sure if following has been mentioned in press, but is usual response from friends I’ve mentioned the campaign to) the commitment is not taken as credible: it’s still just a politician’s (worthless) promise, power would go to his head, exigencies would intervene, or even if none of this is true, the bill would never pass. On the last bit, Lessig argues that if he won as a referendum candidate, members of Congress would understand the electorate was making an extraordinary demand and pass the bill — they want to be re-elected. Sounds reasonable to me, given the extraordinary circumstance of Lessig being elected without deviation from his referendum platform. The extraordinary circumstance that election would be also seems to me to mitigate the other objections, though less so.

Speaking of power head trips, what about the problem of executive power (thus my preference for calling the U.S. presidency a temporary dictatorship)? Abuse and non-reform thereof has been my biggest disappointment with the Obama administration. I can only recall an indirect mention in Republic, Lost: Congressional deliberation is now rare in part due to members’ need to constantly fundraise, thus, according to a quoted former member, Congress is “failing to live up to its historic role of conducting oversight of the Executive Branch” and “[N]o one today could make a coherent argument that the Congress is the co-equal branch of government the Founders intended it to be.” It does seem totally reasonable that if Congress is non-functional and dependent on concentrated money, the executive branch would also be able to cultivate Congress’ dependency (Lessig does a good job of explaining his use of this term early in the book) and thus thwart Congress as an effective regulator of executive power. I wish Republic, Lost had more on the relationship of Congress and the executive, and related, on Congress and the military/foreign policy/state security complex. To what extent does concentrated money from military contractors, “legislative subsidy” (motivated analysis; a less distracted Congress might make such less needed to the extent it is benign and easier to defend against to the extent it is not) from contractors and the military itself make Congress less able to regulate and indeed eager to go along with disastrous and criminal militarism?

What if politicians could and regularly did make credible commitments to upholding their promises? If the mechanism were not novel and the promises reasonable, perception of gimmickry would largely go away. So would the need for the novelty of a referendum candidacy with a promise of resignation: the referendum would be built in, resignation would be required when a candidate does not uphold their promises, not when they do. Could a stronger commitment be made by a candidate now, without any changes to the law? Would a contract with an intermediary, perhaps a non-profit existing only to enforce candidate promises made to it, be upheld? If politicians upholding their promises is a good thing, shouldn’t a commitment mechanism be built into the law?

Assume for a moment that it would be good for government institutions to make candidate promises enforceable (optionally; a candidate could still make all the hot air promises they wished). We can’t have that reform until the system “rigged” (a term Lessig uses in his campaign, but not appearing in the book) by the need to fundraise from concentrated interests is fixed, because we can’t have any reform until the system is fixed, at least not any reform that isn’t corrupted by having to survive the rigged system. Is it the case that concentrated money in elections is the essential rigging that must be removed before good progress on any other issue can be obtained?

Lessig does make a very good case that dependency of politicians on concentrated money interests is a problem. Three points (among many) stood out to me. First, at the least politicians must spend a huge portion of their time fundraising, making them distracted, relatively ignorant (having to be fundraising rather than studying or discussing issues), and I’d imagine relatively stupid (selection for fundraising tolerance and ability, driving out other qualities). Second, we often go through great lengths to ensure judges are removed from cases in which they have even an appearance of conflict — shouldn’t we want to isolate law makers from even the appearance of corruption just as much, if not more? (Does this not suggest a different reform: bar legislators from any vote in which any impacted party has donated above some very small amount to the legislator’s campaigns?) Third, academic literature on the influence of money in legislative outcomes tends to find little. Lessig argues that this literature is looking for keys under the lamppost because that’s where the light is — it’s easy to look at roll call votes, but almost all of the action is in determining what legislation makes it to a vote.

Intuitively the effect of dependence on concentrated money on agenda setting and thus outcomes ought be large. Is there any literature attempting to characterize how large? I didn’t notice any pointers to such in Rebpublic, Lost, but may have missed them. A comment made late in a forum on Subsidizing Democracy: Can Public Financing Change Politics? indicates that the empirical work hasn’t been done yet, at least not through the lens of the impact on outcomes of various forms of public financing of U.S. state legislature campaigns. But public financing does seem to have big impacts on legislator time dedicated to fundraising, time spent talking to potential voters, and who runs and is elected.

Vying with the brief contrast of demands for independence of judges and legislators for the most valuable portion of Republic, Lost is a brief mention with supporting footnote of U.S. state legislative campaign public funding reforms, particularly in Arizona, Connecticut, and Maine:

Over the past fifteen years, three states have experimented with reforms that come very close to this idea. Arizona, Maine, and Connecticut have all adopted reforms for their own state government that permits members of the legislature (and of some statewide offices) to fund their campaigns through small-dollar contributions only. Though the details of these programs are different, the basic structure of all three is the same: candidates qualify by raising a large number of small contributions; once qualified, the candidates receive funding from the state to run their campaigns.

References about these, include one by Michael G. Miller, author of Subsidizing Democracy (2014). I haven’t read this book, but I did find a recording of a forum on the book held at New America Foundation, which I recommend — the other commentators provide valuable context and critique.

Spencer Overton’s comments, starting at about 30 minutes, seem to give an overview of leading thinking on campaign finance, in particular three points. First money in politics is not the problem, dependency on concentrated money is, therefore subsidizing small contributions in exchange for opting to accept limits on large contributions is a solution (note this reform steers clear of reasonable free speech objections to simply banning concentrated money). Second, mitigating corruption is a good outcome of such a solution, but increasing citizen engagement in politics is another good outcome. I’m fairly certain Lessig would be in strong agreement with these first two points; he mentions Overton’s work on “participation interest” in Republic, Lost. Third, states (and cities, e.g., NYC) are learning from and improving their reforms: the impacts on candidate and legislator behavior studied by Miller (primarily in Arizona, if I understand correctly) are based on reforms which are being improved. Overton in particular mentioned the value of matching small donations on an ongoing basis rather than only using small donations to qualify for a lump subsidy (note this would make the reforms much more similar to Lessig’s proposal).

The mention of U.S. state reforms is in the “strategies” section of Republic, Lost, in a description of the first strategy: simply getting Congress to pass a reform similar to those already passed in a few states. Lessig dismisses this strategy because lobbyists are a concentrated interest standing in its way. I’m not convinced by the dismissal for three reasons. First, aren’t state level reforms an existence proof? Lobbyists exist at the state level and are a potential interest group. Second, just how concentrated is the interest of lobbyists qua lobbyists? They are paid to represent various concentrated interests, but how well do they support the Association of Government Relations Professionals, renamed in 2013 from the American League of Lobbyists? Do lobbyists as a class suffer from all the usual collective action problems? Admittedly, to the extent they do form a coherent interest group, they do know just how to be effective. Third, can’t success at the state and local level drive cultural change (especially if reforms obtain demonstrably improved outcomes, but even if not they change the culture of the farm team for Congress and eventually Congress, by removing selection pressure for tolerance of and skill at fundraising), making passing a bill in Congress even against lobbying interests more feasible? This path does not have the urgency of a national campaign, but by Lessig’s own estimates such urgency is nearly hopeless, e.g., as mentioned above “wildly optimistic: 2 percent” for a presidential campaign.

Regardless of whether he favored a long-term state and local innovation driven strategy, I wish Lessig had written more about state and local reforms in order to make the case that concentrated money is a problem more concrete and less intuitive and that reforms similar to ones he proposes make the sort of essential difference that he claims (changed state outcomes could help demonstrate both things). Perhaps there was not enough experience with state and local reforms that de-concentrated and added money to campaigns to say much about them in Repbulic, Lost (2011), but is that still the case in the current campaign? I also would have and would appreciate some analysis of the impact of various campaign financing regimes around the world on the campaigns, composition, behavior, and outcomes of legislatures. The sole contemporary non-U.S. legislature mentioned in Republic, Lost is the UK House of Commons, which often deliberates as a body, unlike the U.S. Congress. Is this an outcome of different campaign financing? Lessig doesn’t say. Yes cross-country comparisons are fraught but surely some would be helpful in characterizing the size of the problem of concentrated money and the potential impact of reform.

While I’m on the “strategies” section of Republic, Lost, a few notes on the other three proposed. Recall the first (discussed above) is passing a bill in the U.S. Congress, dubbed “The Conventional Game”. The second is “An Unconventional (Primary) Game” strikes me as classic Lessig — it involves getting celebrities on board (each celebrity would contest primaries for U.S. Congress in multiple districts), and I don’t quite get it. He gives it a “wildly optimistic: 5 percent” chance of working. With that caveat, and a reminder to myself about taking these proposals charitably, it is a creative proposal at the least. I suppose it could be thought of as a way to turn a legislative primary election season into a referendum on a single issue. Crucially for the single issue of campaign finance reform, without the cooperation of incumbents fit for the current system, or as Lessig writes, it would be a strategy of “peaceful terrorism” on such incumbents.

The third strategy is “An Unconventional Presidential Game”, which the current Lessig campaign seems to be following closely.

The fourth strategy is “The Convention Game”:

A platform for pushing states to call for a federal convention would begin by launching as many shadow conventions as is possible. In schools, in universities—wherever such deliberation among citizens could occur. The results of those shadow conventions would be collected, and posted, and made available for critique. And as they demonstrated their own sensibility, they would support the push for states to call upon Congress to remove the shadow from these conventions. Congress would then constitute a federal convention. That convention—if my bet proves correct—would be populated by a random selection of citizens drawn from the voter rolls. That convention would then meet, deliberate, and propose new amendments to the Constitution. Congress would refer those amendments out to the states for their ratification.

In the book, this strategy seems to be where Lessig’s heart is. He gives it “with enough entrepreneurial state representatives” a “10 percent at a minimum” chance of success. A constitutional convention brings up all kinds of arguments; I recommend reading the chapter in Republic, Lost. I include it in this post for completeness, for its reliance on entrepreneurial state representatives (the long-term “conventional game” also does, see above), and most of all for its inclusion of — sortition (random selection)! That is my preferred reform for choosing legislators (and indirectly, executives, including national temporary dictators), removing not only dependence on concentrated money, but dependence on campaigning, which surely also has a strong selection effect, for tolerance of and skill at campaigning, against other qualities. But much like range voting, land value taxation, and prediction markets (and others; let’s see how the new thing, quadratic voting, fares), sortition’s real world use is about the inverse of its theoretical beauty (dependencies at odds with apparent objectives or corruption broadly conceived is probably a big part of the story for each, example; note similarity to my question about broad conceptions of commoning). Oh well. Perhaps de-concentrating money in political campaigns is a first step toward more ideal institutions.

But is it the essential first step claimed by Lessig, before which no other reform can go forward uncorrupted?

In Republic, Lost Lessig does a decent job of turning stereotypical left and right objections into arguments that de-concentrating money in political campaigns is the essential first step. The left objection is that wealth inequality must be addressed first; without doing so the wealthy will always find ways to rig the system in their favor. Turn: you can’t expect to achieve wealth redistribution when the system is rigged by concentrated money from the wealthy. The right objection is that the essential problem is that government is doing too much; reduce the size and scope of government first, then its remaining essential functions (if any) can run like Swiss clockwork. Turn: you can’t expect to reduce the size and scope of government when the system is rigged by concentrated money protecting every grotesque program. I don’t expect these turns will convince many of those strongly convinced that the essential problem is wealth inequality or big government. In small part because it’s not entirely clear, as for lobbyists, that “the wealthy” or “big government” constitute concentrated interests able to use the rigged system to protect themselves from what a dream crisis or candidate of the left or right would do to them. Rather, there are a bunch of different concentrated interests that probably tend to increase upward wealth redistribution and the size of government. Systematic reform would mitigate these tendencies but from the left or right perspective is not ‘striking at the root’ and does not have the feel of urgency of a dream crisis or candidate. If a referendum candidate is an effective vehicle, why not one who promises to hack at the rich or at government, then resign? But for the not entirely committed, perhaps de-concentrating money in political campaigns can be made to seem a good first step, possibly an essential non-revolutionary (that is, not a catastrophic invitation to trolls) strategy.

Another objection to de-concentration of money in political campaigns as the essential first step is lots that ought be construed as reform is not dependent on elected legislatures. Much does not go directly through government. Everything from organizations to culture to interpersonal relationships all have scope for independent reform, which happens all the time. As do other organs of government such as courts and administration. These objections could be turned to apologia for the primacy of de-concentration of money in political campaigns. They explain why one can perceive good reform happening (e.g., marriage equality) when Lessig tells us no good reform is possible until campaign finance is reformed. These independent sources of reform mask just what a poor job the U.S. Congress does. Clearly lots of important reform is dependent on action by the U.S. Congress, and any such reform is wholly blocked or corrupted by having to survive a U.S. Congress dependent on concentrated money, which meanwhile also passes all kinds of anti-reform.

There are numerous reforms which would reduce corruption, capture, and inappropriate dependency which could be taken as objections to campaign finance reform as the essential first reform, or buttress the argument for it, depending on their dependence on a U.S. Congress dependent on fundraising from concentrated money. The Scourge of Upward Redistribution, a recent article by Steven Teles, surveys a number of such reforms, which tend to give regulatory decision makers more resources and push regulatory decisions into more accessible venues, making decisions less dependent on and controlled by concentrated interests. The control is not just about venue, but imagination: broader participation in regulatory decision making could reduce “cognitive capture” or “cultural capture”. (Needless to say all of these reforms have great intuitive appeal, but like campaign finance reforms, cry out for evidence from where similar are now implemented.) Teles does not mention campaign finance reform at all. I wondered whether this was a critique by omission, and found A New Agenda for Political Reform by Teles and Lee Drutman. They consider attempts to get money out of politics and increase participation to have largely failed and to have poor prospects, and argue the essential reform is to give the U.S. Congress more resources. Conclusion:

Convincing Congress, especially this Congress, to invest in its own staff capacity clearly won’t be easy. But neither is it inconceivable. Even small-government conservatives are feeling pressure to do something about the influence of corporate lobbying. Improving congressional capacity is a reform action they can take that would increase their own power, wouldn’t force them to agree with liberal get-the-money-out-of-politics types, and wouldn’t directly cross the corporate lobbying community. For those concerned about the malign influence of corporate power on our democracy, increasing government’s in-house nonpartisan expertise is almost certainly a more promising path forward than doubling down on more traditional reform strategies.

In Republic, Lost Lessig mentions many of the reforms that Teles writes about, and clearly considers dependence on fundraising concentrated money to be the essential blocker and first reform. I don’t know which is “right”. They largely see the same problems of a government controlled by concentrated interests. To the charge of failure and poor prospects above, I imagine that people like Lessig and Overton would respond that they have moved beyond getting money out of politics to getting more diverse money into politics, and beyond getting people to vote and somehow pay attention to getting them to feel more committed through making small and well matched donations. Presumably both sets of reforms are complementary, except to the extent they compete for reform attention.

This brings us to why I don’t like the referendum candidacy, where the referendum aims to fix the “rigged” system, and the referendum candidate resigns as soon as the bill intended to fix the system is passed. Many reforms are needed to fix the system, including those mentioned by Teles, and probably a selection of reforms favored by people who are committed to reducing wealth inequality as well as the power of government in some dimensions. In order to make the first reform resilient, further strengthening of governing and regulating institutions will have to be made, and the context of inequality and arbitrary power changed. Cursory reading of histories of empires in periods of decline show patriotic (in the sense described at the top) reform attempts, occasionally met with a bit of success, but quickly lost. Why would the American empire be any different? There’s no reason to think it might be other than patriotic (in the bad sense) delusion. If a candidate like Lessig were to get a mandate for reform, I’d want them to see it through. Passing one bill to de-concentrate campaign funding might be the necessary first reform, but I can’t see it being sufficient even to ensure the survival of itself, uncorrupted.

The Lessig referendum candidacy’s one bill includes more than a measure to de-concentrate campaign funding though. This measure is bundled with two others (voting rights and election method and districting reforms) under the name Citizen Equality Act. There is perhaps a hint of this in Republic, Lost, where equality of voting is mentioned, but in contrast to the inequality of campaign funding rather than as something needing reform. Now surely there are useful reforms to be made in these areas which would get closer to every voter having equal weight, in terms of access to voting and impact of their votes. But what happened to the one essential reform that must happen before any other than be achieved, uncorrupted? It’s there of course, but why have it share the focus with two good but non-blocking reforms? Here’s what I imagine: concern about inequality bubbles to the top of mainstream discourse, Lessig thinks that he’s got to connect with the equality movement, and comes up with the brand and bundling of “Citizen Equality”. Or maybe campaign finance reform was deemed to be not enough to base on referendum candidacy on, even though it is claimed to be the essential first reform. I have no idea how the Citizen Equality idea came about…but maybe it is a good one. Anti-corruption measures, especially as Lessig defines corruption, seem to largely be consequentialist: we can’t get nice things from a corrupt system (and if one is not careful, anti-corruption measures can be rights violating, even if they achieve good things on net). Voter equality measures on the other hand, seem largely to be about rights: the rights of individual voters, and the ability of minority groups to have a voice through the ballot and protect their rights from the majority. I imagine (surely this is something that has been studied in depth, but I am ignorant) that consequence and rights arguments appeal differently to different voters; a proposal which appeal to both could have better chances of acceptance.

Before closing I have to comment on a few bits pertinent to knowledge policy found in Republic, Lost:

Consider, for example, the case of movies. Imagine a blockbuster Hollywood feature that costs $20 million to make. Once a single copy of this film is in digital form, the Internet guarantees that millions of copies could be accessed in a matter of minutes. Those “extra” copies are the physical manifestation of the positive externality that a film creates. The value or content of that film can be shared easily—insanely easily—given the magic of “the Internets.”

That ease of sharing creates risk of underproduction for such creative work: If the only way that this film can be made is for the company making it to get paid by those who watch it, or distribute it, then without some effective way to make sure that those who make copies pay for those copies, we’re not going to get many of those films made. That’s not to say we won’t get any films made. There are plenty of films that don’t exist for profit. Government propaganda is one example. Safety films that teach employees at slaughterhouses how to use dangerous equipment is another.

But if you’re like me, and want to watch Hollywood films more than government propaganda (and certainly more than safety films), you might well be keen to figure out how we can ensure that more of the former get made, even if we must suffer too much of the latter.

The answer is copyright—or, more precisely, an effective system of copyright. Copyright law gives the creator of a film (and other art forms) the legal right to control who makes copies of it, who can distribute it, who displays it publicly, and so forth. By giving the creator that power, the creator can then set the price he or she wants. If the system is effective, that price is respected—the only people who can get the film are the people who pay for it. The creator can thus get the return she wants in exchange for creating the film. We would be a poorer culture if copyright didn’t give artists and authors a return for their creativity.

I realize this just serves as an example in the context of Republic, Lost, but it’s an appallingly bad one. What risk of underproduction? What does that even mean in the context of entertainment? People love whatever culture they’re immersed in. Individuals have limited attention, massively over-saturated by a huge market. Private tax collection by copyright holders is not the only way to get films made; film making is hugely subsidized (even in the U.S., through location rent seeking), those subsidies could obtain films not subject to private enforcement of speech restrictions. Safety films and government propaganda as the examples of what would be produced without copyright? For government (in particular military/security state) propaganda — watch Hollywood. When not under the influence of offering explanations of how Hollywood blockbusters justify copyright, Lessig and the like celebrate the extraordinary creativity of non-commercial video artists of many forms, uploading countless hours of film superior to safety instruction and propaganda videos. Now presumably there would be many fewer Hollywood-style blockbusters without copyright (incidentally I think a zero was left off the cost figure in the quote, though much of that may be marketing). But a poorer culture? A somewhat different culture, certainly — one in which private censors are not empowered to damage the net, one in which monopoly knowledge rents do not concentrate cultural power, increase wealth inequality, and exclude the poorest from access to knowledge. I don’t expect Lessig to become a copyright abolitionist, and in any case think it is far more useful to advocate for commons-favoring policy than against copyright. But granting the commanding heights of culture wholesale to the copyright industry and narrowing the vision of what the commons can produce is no way to argue for any sort of reform, other than the sort the copyright industry wants.

Elsewhere in the book:

As with any speech regulation, the first question is whether there are other, less restrictive means of achieving the same legislative end. So if Congress could avoid dependence corruption by, say, funding elections publicly, that alternative would weaken any ability to justify speech restrictions to the same end. The objective should always be to achieve the legitimate objectives of the nation without restricting speech.

Apply this to the ends of entertainment production.

This seems like a good juncture to mention a related question: why not free political speech from private censorship? All political speech (by some definition, preferably all speech…but presumably speech paid for by campaign contributions) should be in the public domain. I doubt this would have any significant impact on campaigns or fundraising, but more freedom of speech, especially political speech, seems independently worthy.

A briefer and less bad mention of patents:

Those patents are necessary (so long as drug research is privately financed), but there has long been a debate about whether they get granted too easily, or whether “me-too” drugs get protection unnecessarily.

This seems to be another odd case in which an writer grants more necessity to copyright for entertainment production and less imagination for an alternative than for patents and drug development. Though I’m glad to see the parenthetical above (of course it ought be noted that public money already pays for much of the research, and buys much of the product…), I find the ordering bizarre. The piece I’ve seen similar but even more pronounced recently in is Teles’ The Scourge of Upward Redistribution!

From the “Conventional Game” and “Choosing Strategies” chapters:

These four reasons all point to a common lesson in the history of warfare: You don’t beat the British by lining up in red coats and marching on their lines, as they would on you. You beat them by adopting a strategy they’ve never met, or never played. The forces that would block this bill work well and effectively on Capitol Hill, and inside the Beltway. That is their home. And if we’re going to seize their home, and dismantle it, we need a strategy that they’re sure is going to fail. Yet we need it to win.

Insurgent movements have to fight the war on unconventional turf. If the issue gets decided finally within institutions that depend upon things staying the same, things will stay the same. But if we can move the battle outside the Beltway, to venues where the status quo has no natural advantage, then even small forces can effect big change.

These are exactly why in the space of knowledge policy that commons-based products and commons-favoring policy are so potent, and ought be taken as the primary mechanism of knowledge policy reform. Uncorrupted direct reform of copyright and patents (the standard menu includes things like reducing term lengths and increasing ‘quality’) probably is hopeless without de-concentrating funding of political campaigns (or whatever anti-corruption measure turns out to be the essential first step). Good luck to Lessig. In the meantime, knowledge commons can slowly (far too slowly now, I admit) change the structure of the knowledge economy, create concentrated interests that benefit from commons-favoring policy, and increase policy imagination for what is possible without intellectual property.

I started off claiming that Lessig is the most patriotic candidate for U.S. temporary dictator because he’s the only one putting his preferred issues to the side to fix the institutions of government and make collective action work better. But I have to admit that jingoist patriots (those with some patience anyway) ought also favor Lessig, because those are the qualities that give a nation the capacity to dominate others over the long term, if its constituents have such ugly desires.

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.

6 reasons for GPL lovers, haters, exploiters, and others to enjoy and support GPL enforcement

Thursday, March 5th, 2015

Linux kernel developer Christoph Hellwig today filed a lawsuit against VMware (NYSE:VMW; US$36 billion market cap) due to their long time refusal to observe the terms of the GPL when incorporating code by Hellwig into their kernel, which remains proprietary. If VMware observed the GPL’s terms, their kernel including all source would be released under the GPL. This is a significant case, in part due to the rarity of GPL enforcement lawsuits. Details on the website of Software Freedom Conservancy, which is coordinating and funding (you can help) this action.

If the GPL is rarely enforced, its differentiation from non-copyleft licenses such as MIT, BSD, and Apache is muted. Why should you support license differentiation and thus GPL enforcement?

  1. You think copyleft is a wonderful hack, a productive and even necessary strategy for protecting and expanding the software commons. No enforcement makes the hack buggy: rarely executing and easily circumvented. So of course you want enforcement.
  2. You think copyleft curtails freedom, and ironically hampers the software commons — intractable incompatibility means software can’t be freely mixed, and the attempt to prevent capture by proprietary software interests only abets capture of the field by intellectual parasite lawyer interests. Your efforts to persuade developers and companies that they should avoid GPL software at all costs (up to reimplementation) in preference to permissive and public domain instruments can only be enhanced by prominent GPL enforcement by lawsuit.
  3. You think copyleft is great for software business, as one can acquire users by offering GPL software, then acquire customers by shaking down users who could conceivably not be observing the GPL to the letter. Public GPL enforcement makes your salespeople more compelling.

Among people who have any opinion about copyleft, I’m pretty sure there are very few who accept more than one of the above thoughts. I enjoy all three (the third looks like a sin tax to me). My point here is that people who completely disagree on the purpose and efficacy of copyleft ought all be excited and supportive of copyleft enforcement. But there are additional, less commonly discussed reasons:

  1. You think strong copyleft encourages more people to release free software, people who would not be comfortable with releasing under a non-copyleft license, whether because they fear piracyproprietarization more than obscurity (some overlap with 1 above), or because they want to make wealthy entities pay (lots of overlap with 3 above). Strong copyleft serves as the NonCommercial of the software world (without being fundamentally broken like NC, though the most radical believers in 2 above might disagree) in that it increases the range of licensing options to meet the preferences of both those who fear exploitation by business, and those who want to exploit business. Strong copyleft isn’t so strong without enforcement, so anyone who understands the value of this differentiation should want it to be strengthened by enforcement actions.
  2. You think copyleft-for-x is needed for some non-software field (or hear such thoughts expressed; e.g., for seeds or hardware designs, even real property), but the details of how copyleft works are a bit fuzzy. Enforcement by lawsuit is where the rubber meets the road, so you should enjoy the demystification provided by such actions and support them. Also, successful copyleft enforcement will stoke more people to have desires for copyleft-for-x, thus increasing your community of people intent on figuring out the “for-x” part.
  3. You think copyleft is most usefully considered as a prototype for and test of rules that ought be enforced by more effective regulatory mechanisms. Whether you think software provided without source and permissions should be totally banned, not regulated at all, or only regulated for particular uses or in particular fields (e.g., products and services already subject to other safety, disclosure, and pro-competition or consumer protection requirements), it is absurd to think that developer whim and resources in applying and enforcing the GPL regulates and regulates effectively an optimal set of software. It is time to move beyond debate of a hack of state-deputized private censorship as central to software freedom politics and policy, and on to debating directly state vs. market regulation of software (with all the usual arguments about (in)adequacy of market provision and harm/help of state intervention) as in any field of importance, preferably with very strong commons-favoring bias from both sides (e.g., software freedom market-skeptics and state-skeptics ought agree that regulation by private censorship, which serves proprietary interests almost exclusively, be wound down, and that state entities self-regulate by mandating software freedom for everything they acquire and fund). Unenforced copyleft means the rules prototyped are untested, reducing salience of the prototype, so you also should enjoy GPL enforcement actions.

I enjoy these latter 3 reasons especially, perhaps especially because few other people seem to (I’m eager to be or become wrong about this).

Go help Software Freedom Conservancy support Hellwig’s enforcement against VMware, or tell me why I’m wrong. Note I’m on Software Freedom Conservancy’s board and endorse all of their work, but as usual, this blog post represents only my opinion. Of the reasons to support enforcement above, they’d agree with 1; probably find 2 and 3 and maybe 4 objectionable; 5 and 6 perhaps curious but distant from work in today’s trenches. Again, my point is that many more people than those who agree with 1 (copyleft for good), even those who totally disagree with 1, should enjoy and support GPL enforcement.

The lawsuit will probably be heavily covered in the technology press, but you can read some early discussions now at, Hacker News, and reddit. You can also read about copyleft in general at (another Software Freedom Conservancy project; my take).

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?

What is the attribution revolution?

Tuesday, February 3rd, 2015 suggested tweet:

I believe in giving and receiving credit for photographs online. Do you? Join the #attributionrevolution –

Down with the romance of authorship and the ideas that credit is due (as suggested at the link) and that information propertization and the legal system are appropriate mechanisms for encouraging credit (as suggested by licenses mentioned in the campaign which condition free speech on providing attribution).

But I support despite a bit of ugly rhetoric in its messaging because the technology is fundamentally about making provenance available on demand — undermining the rationale for consciously giving credit or making lack of explicit credit a cause for legal action.

The real attribution revolution has nothing to do with believing that credit is due anyone, and everything to do with attribution (in multiple senses, but including work-creator relationship identification) becoming inescapable, at least not without great and very careful effort. is the tip of the top of the iceberg of image and other huge databases (in a sense literally: apparently is an open database, while others millions of times larger are opaque, submerged beneath corporate and government seawater) and techniques like deep learning and stylometry make universal attribution not only feasible but seemingly inevitable. I don’t know whether this is on net a good or bad thing — but it is the real attribution revolution.

14 months ago I railed against the attribution condition of some open and semi-open licenses (emphasis added):

Do not take part in the debasement of attribution, and more broadly, provenance, already useful to readers, communities of practice, and publishers, by making them seem mere objects of copyright license compliance. If attribution is useful, it will be provided. If not, robots will find out. Rarely does anyone comply with the exact legal requirements of the attribution term anyway, and as a licensor, you probably won’t provide the information needed by licensees to easily comply. Plus, the corresponding icon looks like a men’s bathroom sign.

The campaign page for example: it does not “include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform” nor does it provide “the URI, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work” — in other words, it names the works it uses and the licenses it uses them under, but does not link to those works and licenses (quotes from CC-BY-3.0).

The other reason I support (yes visit that campaign page, give, and ignore the utter triviality of attribution license non-compliance) is that it is focused on provenance for open works (freely licensed or in the public domain — with caveat that I haven’t checked whether it includes semi-open works) and is itself an open source/open data project — provenance for the commons, and commons for the provenance.

Much more work in this area is needed, especially with a focus on high value open works (e.g. premium video) and creating high value open works — I mean by creating network effects around open works, not creating the works themselves. But even a still image focused project could help a bit — every frame of every open premium video could be included in the database, and any use metrics that can be extracted can be used to document and thus abet popularity.

Libre Graphics World has a long interview with founder Jonas Öberg that is well worth reading. Separately, there is big news not about but very pertinent to (which also perhaps explains why the campaign is only attempting to raise $6,000): Öberg is returning to work at the Free Software Foundation Europe (of which he is a co-founder and will be executive director; I had the pleasure of working with him a bit in between at Creative Commons, where he was European coordinator).

I don’t know the FSFE that well, but my impression is very positive, in particular its engagement in politics as public policy, not only the petite politics of individual developers choosing particular licenses and individual users rejecting proprietary software. Congratulations to Jonas on both the campaign and the FSFE position, and hoping for great success in both. Especially the latter could have an important role in making the real attribution revolution relatively beneficent.

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

Defensive Patent License 1.1 w/diff

Tuesday, December 9th, 2014

13 months ago I wrote about the Defensive Patent License, in particular in relation to free/open source software (followup, 1993 predecessor). Today the DPL project released DPL 1.1 and announced the first licensor; see Internet Archive and EFF posts.

(The EFF post references its earlier guide to alternative patent licensing which I meant to critique, probably along lines of a partially overalpping guide to reform proposals, see patent reform, parts deficient in commons and compare with protect commons from patents. I noticed today that one of the other alternative licensing schemes, License On Transfer, seems to be getting some uptake.)

Most of what I wrote previously about the DPL concept still applies with DPL 1.1 (interesting concept, possibility of substantial good impact in long term). The new version makes one major improvement (especially in relation to FLOSS) — the exclusion of “clone” products or services from the license grant has been removed. Another small (as in a -3 words difference) improvement is that alleging patent invalidity against another DPL user no longer breaches one’s licenses (only alleging infringement does), invalidation being a defensive tactic.

DPL 1.1 also adds the requirement of explicit acceptance, which strikes me as burdensome: one must research licensed patents in order to figure out which DPL users to contact with acceptance, or regularly contact all known DPL users with acceptance of all licensed patents. I understand from the DPL 1.1 announcement telecon that formal acceptance was added because the license grant is more likely to stand up in court with such explicit acceptance, with that more likely assessment based on differences between patent and copyright, and between clubs and public licenses — and further that the “contact all known DPL users” practice will in the future be facilitated by the DPL website.

Finally, a very minor issue: DPL 1.1 reproduces the GPL’s confusing three-option version compatibility scheme (this-version-or-later, only-this-version, or any-version-if-none-specified). If one must have options, I consider less confusing this-version-or-later as default, with option to explicitly mandate only-this-version.

Congratulations and thanks to Jason Schultz, Jennifer Urban, Brewster Kahle, John Gilmore, and others for getting the DPL into production. I hope it is wildly successful; check out the DPL website and help update the Wikipedia article.

Following is a wdiff between DPL 1.0 and 1.1 in two parts (because 1.0 put definitions at the beginning, 1.1 puts them at the end) below, excluding 1.1’s preface, which has no equivalent in 1.0.

DPL 1.0-1.1 wdiff: Grant, conditions, etc.

[-2.-]{+1.+} License Grant

Subject to the conditions and limitations of this [-License and upon-]
[-affirmative assent to the commitments specified in Section 1.7 from an-]
[-individual DPL User,-] {+License,+} Licensor hereby
grants and agrees to grant to [-such-] {+any+} DPL User {+(as defined in Section 7.6) who+}
{+follows the procedures for License Acceptance (as defined in Section 1.1)+}
a worldwide, royalty-free, no-charge, non-exclusive, irrevocable (except
as stated in Sections [-3(e)-] {+2(e)+} and [-3(f))-] {+2(f))+} license, perpetual for the term of
the relevant Licensed Patents, to make, have made, use, sell, offer for
sale, import, and distribute Licensed Products and Services that would
otherwise infringe any claim of Licensed Patents. A Licensee’s sale
of Licensed Products and Services pursuant to this agreement exhausts
the Licensor’s ability to assert infringement [-by-] {+against+} a downstream
purchaser or user of the Licensed Products or Services.

[-2.1-] {+Licensor’s+}
{+obligation to grant Licenses under this provision ceases upon the arrival+}
{+of any applicable Discontinuation Date, unless that Date is followed by+}
{+a subsequent Offering Announcement.+}
{+1.1+} License Acceptance

In order to accept this License, Licensee must {+qualify as a DPL User+}
{+(as defined in Section 7.6) and must+} contact Licensor via the
[-contact-] information
provided in [-Section 1.16 and-] {+Licensor’s Offering Announcement to+} state affirmatively that
Licensee accepts the terms of this License. Licensee must also {+communicate+}
{+the URL of its own Offering Announcement (as defined in Section 7.13) and+}
specify whether it is accepting the License to all Licensor’s Patents or
only a subset of those Patents. If Licensee is only accepting the License
to a subset of Licensor’s Patents, Licensee must specify each individual
{+Patent’s country of issuance and corresponding+} patent [-by patent number.-]
[-3.-] {+number for which+}
{+it is accepting a License. There is no requirement that the Licensor+}
{+respond to the Licensee’s affirmative acceptance of this License.+}
{+2.+} License Restrictions

Notwithstanding the foregoing, this License is expressly subject to and
limited by the following restrictions:

(a) No Sublicensing. This License does not include the right to sublicense
any Licensed Patent of any Licensor.

(b) License Extends Solely to Licensed Patents in Connection with Licensed
Products and Services. For clarity, this License does not purport to
grant any rights in any Licensor’s copyright, trademark, trade dress,
design, trade secret, other intellectual property, or any other rights of
Licensor other than the rights to Licensed Patents granted in Section 2,
nor does the License cover products or services other than the Licensed
Products and Services.  {+For example, this License would not apply to+}
{+any conduct of a Licensee that occurred prior to accepting this License+}
{+under Section 1.1.+}

(c) Scope. This License does not include Patents with a priority date
or Effective Filing Date later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.

(d) Future DPL Users. This License does not extend to any DPL User whose
Offering Announcement occurs later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.

(e) Revocation and Termination Rights. Licensor reserves the right to
revoke and/or terminate this License with respect to a particular Licensee [-if:-]
{+if, after the date of the Licensee’s most recent Offering Announcement:+}
{+i.+} Licensee makes any Infringement Claim, not including Defensive Patent
Claims, against a DPL User; or

{+ii.+} Licensee {+assigns, transfers, or+} grants an exclusive [-license,-]
[-    with the right to sue, or assigns or transfers-] {+license for+}
a Patent to an entity or individual other than a DPL User without
conditioning the [-transfer-] {+assignment, transfer, or exclusive license+} on the [-transferee-]
{+recipient+} continuing to abide by the terms of this [-License.-] {+License, including but+}
{+not limited to the revocation and termination rights under this Section.+}

(f) Optional Conversion to FRAND Upon Discontinuation. [-As-] {+Notwithstanding+}
{+any other provision in this License, as+} of any particular Licensee’s
Discontinuation Date, Licensor has the right to convert the License of
that particular Licensee from one that is royalty-free and no-charge to
one that is subject to Fair, Reasonable, And Non-Discriminatory (FRAND) [-terms.-]
{+terms going forward. No other terms in the license may be altered in+}
{+any way under this provision.+}
{+3.+}        Versions of the License


{+(a)+} New Versions

The DPL [-Foundation is-] {+Foundation, Jason M. Schultz of New York University, and Jennifer+}
{+M. Urban of the University of California at Berkeley are+} the license [-steward. No-]
{+stewards. Unless otherwise designated by one of the license stewards,+}
{+no+} one other than the license [-steward-] {+stewards+} has the right to modify or publish
new versions of this License. Each version will be given a distinguishing
version number.


{+(b)+} Effect of New {+or Revised+} Versions

[-Licensed Products and Services-]

{+Any one of the license stewards+} may {+publish revised and/or new versions+}
{+of the DPL from time to time. Such new versions will+} be [-used, made, sold, offered for sale,-]
[-imported, or distributed under-] {+similar in spirit+}
{+to+} the [-terms-] {+present version, but may differ in detail to address new problems+}
{+or concerns.+}
{+Each version is given a distinguishing version number. If Licensor+}
{+specifies in her Offering Announcement that she is offering a certain+}
{+numbered version+} of the [-version-] {+DPL “or any later version”, Licensee+}
{+has the option+} of {+following+} the [-License-]
[-originally accepted pursuant to Section 2.1,-] {+terms and conditions either of that+}
{+numbered version+} or [-under-] {+of any later version published by one of+} the [-terms-] {+license+}
{+stewards. If Licensor does not specify a version number+} of {+the DPL in+}
{+her Offering Announcement, Licensee may choose+} any
[-subsequent-] version {+ever+} published
by {+any of+} the license [-steward.-]
[-5.-] {+stewards.+}
{+4.+}        Disclaimer of Claims Related to Patent Validity and [-Noninfringement.-]

Licensor makes no representations and disclaims any and all warranties
as to the validity of the Licensed Patents or [-that-] {+the+} products or processes
covered by Licensed Patents do not infringe the patent, copyright,
trademark, trade secret, or other intellectual property rights of any
other party.


{+5.+}        Disclaimer of [-Warranties.-] {+Warranties+}



{+6.+}        Limitation of [-Liability.-] {+Liability+}


DPL 1.0-1.1 wdiff: Definitions

[-1.-]{+7.+} Definitions


{+7.1+} “Affiliate” means a corporation, partnership, or other entity in
which the Licensor or Licensee possesses more than fifty percent (50%) of
the ownership interest, representing the right to make the decisions for
such corporation, partnership or other entity which is now or hereafter,
owned or controlled, directly or indirectly, by Licensor or Licensee.

[-1.2  “Clone Products or Services” means products or services of-]
[-Licensee that include the same or substantially identical functionality of-]
[-all or a commercially substantial portion of a prior released product or-]
[-service of a Licensor and implement the same or a substantially identical-]
[-proprietary user interface of the prior product or service.-]

{+7.2+} “Defensive Patent Claim” means an Infringement Claim against a
DPL User made in response to a pending prior Infringement Claim by said
DPL User against the asserter of the Defensive Patent Claim.


{+7.3+} “Discontinuation Announcement” means a DPL User’s announcement

{+(a)+} declares the DPL User’s intent to discontinue offering to license
its Licensed Patents under the DPL, effective as of the Discontinuation
Date; and

{+(b)+} contains the DPL [-User's-] {+User’s+} contact information for licensing purposes;
and [-is submitted to the DPL-]
[-    Website via the Websites's official email address-]

{+(c)+} at least 180 days prior to [-a-] {+the+} Discontinuation [-Date;-] {+Date is posted to a+}
{+publicly accessible website;+} and

{+(d)+} at least 180 days prior to the Discontinuation Date is [-posted to a publicly accessible-]
[-    indexed-] {+communicated+}
{+reasonably and promptly, along with the URL of the+} website [-controlled-] {+mentioned in+}
{+subsection (c) of this provision,+} by the {+discontinuing+} DPL User [-using a URL accessible-]
[-    via at least the following syntax: "" or-]
[-    "" where "NAME" is-] {+to every+}
{+Licensor of+} a [-name-]
[-    commonly associated with-] {+Patent to which+} the {+discontinuing+} DPL [-user, such as-] {+User is+} a [-company name.-]
[-1.5-] {+Licensee.+}
{+7.4+} “Discontinuation Date” means the date a DPL User specifies in
{+its+} Discontinuation Announcement to discontinue offering to license its
Licensed Patents under the DPL, which must be at least 180 days after
the date of an individual or entity’s most recent Discontinuation


{+7.5+} “DPL” and “License” mean the grant, conditions, and
limitations herein.


{+7.6+} “DPL User” means an entity or individual that:

{+(a)+} has committed to offer a license to each of its Patents under the [-DPL, or, if such entity or individual has no Patents, has-]
[-    committed to offer a license to any Patents it may obtain in the-]
[-    future under the-]
DPL; and

{+(b)+} has declared such commitment by means of an Offering Announcement; and

{+(c)+} if the entity or individual has made a Discontinuation Announcement,
the Discontinuation Date has not yet occurred; and

{+(d)+} has not engaged in the conduct described in either Sections [-3(e)(i)-] {+2(e)(i)+}
or [-3(e)(ii).-]
[-1.8 “DPL Website” means the website-]
[-, or any future site designated by-]
[-the DPL Foundation.-]
[-1.9-] {+2(e)(ii).+}
{+7.7+} “Effective Filing Date” is the effective filing date determined
by the applicable patent office that issued the relevant Licensed Patent.

[-1.10 “Foundry Services or Products” means services provided by-]
[-Licensee to, or products manufactured by Licensee for or on behalf of,-]
[-a specific third party, using designs or specifications received in-]
[-a substantially completed form from that third party, for resale or-]
[-relicense to or on behalf of that third party. This definition will not-]
[-apply when:-]
[-    Licensee or its Affiliate owns the design or specification of such-]
[-    service or product and the service or product is not specifically-]
[-    designed for commercial exploitation substantially only by such third-]
[-    party; or such design or specification resulted from a bona fide joint-]
[-    development or joint participation between Licensee or its Affiliate-]
[-    and such third party, including but not limited to a standards body-]
[-    or community organization and the resulting products, services or-]
[-    components provided by Licensee or its Affiliate meet the definition-]
[-    of Licensed Services Product or Products as set forth herein; or-]
[-    the third party recipient of the products or services is a DPL User.-]

{+7.8+} “Infringement Claim” means any legal action, proceeding or
procedure for the resolution of a controversy in any jurisdiction in
the world, whether created by a claim, counterclaim, or cross-claim,
alleging patent [-infringement or patent invalidity.-] {+infringement.+} Such actions, proceedings, or procedures
shall include, but not be limited to, lawsuits brought in state or
federal court, binding arbitrations, and administrative actions such as
a proceeding before the International Trade Commission.


 {+7.9+} “Licensed Patents” means any and all Patents (a) owned or
 controlled by Licensor; or (b) under which Licensor has the right
 to grant licenses without the consent of or payment to a third party
 (other than an employee inventor).


{+7.10+} “Licensed Products and Services” means any products, services
or other activities of a Licensee that practice one or more claims of
one or more Licensed Patents of a [-Licensor, but excluding Foundry Services-]
[-or Products and Clone Products or Services.-]
[-1.14-] {+Licensor.+}
{+7.11+} “Licensee” means any individual, corporation, partnership or
other entity exercising rights granted by the Licensor under this License
including all Affiliates of such entity.


{+7.12+} “Licensor” means any individual, corporation, partnership or
other entity with the right to grant licenses in Licensed Patents under
this License, including any Affiliates of such entity.


 {+7.13+} “Offering Announcement” means a Licensor’s announcement that:

{+(a)+} declares the Licensor’s commitment to offer a [-license to-] {+Defensive Patent+}
{+License for any of+} its Patents
    [-under the DPL, or, if such Licensor has no Patents, the commitment to-]
[-    offer a license-] to any [-Patents it may obtain in the future under the-]
[-    DPL;-] {+DPL User;+} and

{+(b)+} contains the Licensor’s contact information for licensing purposes;
and [-is submitted to the DPL Website via the Website’s-]
[-    official email address; and-]

{+(c)+} is posted to a publicly accessible
    [-indexed website controlled by Licensor using a URL accessible-]
[-    via at least-] {+website.+}
{+An Offering Announcement may, but is not required to, specify the+}
{+particular version of the DPL that+} the [-following syntax: "" or-]
[-    "" where "NAME"-] {+Licensor+} is {+committed to+}
{+offering. It may also specify+} a [-name-]
[-    commonly associated with Licensor, such as a company name.-]
[-1.17-] {+particular version of the DPL “or any+}
{+later version” to allow Licensees to accept subsequent new or revised+}
{+versions of the DPL.+}
{+7.14+} “Patent” means any right, whether now or later acquired,
under any national or international patent law issued by a governmental
body authorized to issue such rights. For clarity, this definition
includes any rights that may arise in patent applications, utility
models, granted patents, including, but not limited to, continuations,
continuations-in-part, divisionals, provisionals, results of any patent
reexaminations, and reissues, but excluding design patents or design

prioritize(projects, freedom_for_all_computer_users)

Monday, December 8th, 2014

Last week the Free Software Foundation published its annual appeal, which includes the following:

In another 30 years, we believe that we can achieve our goal. We believe that free software can be everywhere, and that proprietary software can go the way of the dinosaur. With the experience we’ve gained, and our community surrounding us, we can win this.

My immediate reaction: I’d love to see the last sentence expanded. How exactly?

Sadly I do not live in a world that laughs at any fundraising appeal lacking an explicit theory of change and only esteems those that one can bet on. At least the FSF has a goal. Perhaps its surrounding community can figure out what it will take to achieve that goal.

Helping “the FSF stay strong for 30 more years” is plainly insufficient, though of course I hope the FSF does stay strong for decades and encourage helping financially. The entire free software movement on its current trajectory is insufficient; some of its staunchest advocates predict a “dark ages” of software freedom (e.g., Bradley Kuhn, Stefano Zacchiroli).

Since 2005 the FSF has published a list of high priority free software projects in order “to foster work on projects that are important for increasing the adoption and use of free software and free software operating systems.”

Today the FSF announced a review of this list. Excerpt:

Undoubtedly there are thousands of free software projects that are high priority, each having potential to displace non-free programs for many users, substantially increasing the freedom of those users. But the potential value of a list of High Priority Free Software Projects maintained by the Free Software Foundation is its ability to bring attention to a relatively small number of projects of great strategic importance to the goal of freedom for all computer users.


Keep in mind that not every project of great strategic importance to the goal of freedom for all computer users will be a software development project. If you believe other forms of activism, internal or external (e.g., making free software communities safe for diverse participants, mandating use of free software in the public sector), are most crucial, please make the case and suggest such a project!

I hope the announcement text indicates the possibility of exploiting the review and list to encourage debate about how to achieve the FSF’s goal of software freedom for all over the next decades, and that the how might (must, in my view) go far beyond hacking of code (and secondarily, copyright). How can demand for software freedom be both increased and made more effective? Same for supply, inclusive of distribution and marketing?

Send your suggestions to or better yet post publicly. (I’m on the review committee.)

Because it is undoubtedly out of scope for above activity, I’ll note here a project I consider necessary for FSF’s goal to become plausible: question software freedom.

The “dark ages” links above largely concern “the cloud”, the topic of the other FSF-related committee I’ve participated in, over 6 years ago, correctly implying that effort was not very influential. I hope to post an assessment and summary of my current take on the topic in the near future.