Mike Linksvayer

Ethan Zuckerman writes:

Under US law, pretty much anything you write down is copyrighted. Scrawl an original note on a napkin and it’s protected until 70 years after your death.

Note: None of this post should be taken as criticism of Zuckerman. I’m just using his sentence as a foil. He is a great blogger, the above is a great post of his, which furthermore talks about the great work of some of my colleagues…

In what sense is the hypothetical scrawl above “protected” by copyright? A scrawl might be protected by a glass case or digitization, or even (somewhat remotely) by secure property rights in napkins, glass cases, and computers.

No, copyright restricts the ability of others to use representations of the scrawl legally, without obtaining permission from the scrawler or a party the scrawler has transferred this right to censor to.

Which brings us to another inaccurate phrasing, which has many variations, all along the lines of “copyright is the right to … a copyrighted work” where the ellipsis are filled by words like “publish”, “distribute”, or “perform”. Not true! Copyright is not required to have the right to publish a work, or public domain works would be illegal to publish. Instead, copyright is the right to legally restrict others from publishing, distributing, performing works.

So use of the term ‘copyright protection’ (2,930,000 Google hits) instead of ‘copyright restriction’ (19,300 Google hits) is a peeve of mine and seeing copyright equated with censorship a small joy.

I just learned that today is Public Domain Day — but unfortunately that Wikipedia link merely redirects to the January 1 article.

I have little to offer but past postings on the public domain.

Here’s to expanding the size and scope of the realm beyond lawsuit, regulation, and taxation!

The Wikimedia Foundation board has passed a resolution that is a step toward Wikipedia migrating to the Creative Commons Attribution-ShareAlike license. I have an uninteresting interest in this due to working at Creative Commons (I do not represent them on this blog), but as someone who wants to see free knowledge “win” and achieve revolutionary impact, I declare this an important step forward. The current fragmentation of the universe of free content along the lines of legally incompatible but similar in spirit copyleft licenses delays and endangers the point at which that universe reaches critical mass — when any given project decides to use a copyleft license merely because then being able to include content from the free copyleft universe makes that decision make sense. This has worked fairly well in the software world with the GPL as the copyleft license.

Copyleft was and is a great hack, and useful in many cases. But practically it is a major barrier to collaboration in some contexts and politically it is still based on censorship. So I’m always extremely pleased by any expansion of the public domain. There could hardly be a more welcome expansion than Daniel J. Bernstein’s release of his code (most notably qmail) into the public domain. Most of the practical benefit (including his code in free software distributions) could have been achieved by released under any free software license, including the GPL. But politically, check out this two minute video of Bernstein pointing out some of the problems of copyright and announcing that his code is in the public domain.

Bernstein (usually referred to as ‘djb’) also recently doubled the reward for finding a security hole in qmail to US$1,000. I highly recommend his Some thoughts on security after ten years of qmail 1.0, also available as something approximating slides (also see an interesting discussion of the paper on cap-talk).

Hack, Mash & Peer: Crowdsourcing Government Transparency from the Mercatus Center looks like a reasonable exhortation for the U.S. jurisdiction government to publish data in open formats so that government activities may be more easily scrutinized. The paper’s first paragraph:

The federal government makes an overwhelming amount of data publicly available each year. Laws ranging from the Administrative Procedure Act to the Paperwork Reduction Act require these disclosures in the name of transparency and accountability. However, the data are often only nominally publicly available. First, this is the case because it is not available online or even in electronic format. Second, the data that can be found online is often not available in an easily accessible or searchable format. If government information was made public online and in standard open formats, the online masses could be leveraged to help ensure the transparency and accountability that is the reason for making information public in the first place.

That’s great. But if peer produced (a more general and less inflammatory term than crowdsourced; I recommend it) scrutiny of government is great, why not of think tanks? Let’s rewrite that paragraph:

Think tanks produce an overwhelming number of analyses and policy recommendations each year. It is in the interest of the public and the think thanks that these recommendations be of high quality. However, the the data and methodology used to produce these positions are often not publicly available. First, this is the case because the data is not available online or even in electronic format. Second, the analysis that can be found online is often not available in an easily accessible or searchable format. Third, nearly everything published by think tanks is copyrighted. If think tank data and analysis was made public online in standard open formats and under open licenses, the online masses could be leveraged to help ensure the quality and public benefit of the policy recommendations that are the think tanks’ reason for existing in the first place.

Think tanks should lead by example, and improve their product to boot. Note the third point above: unlike U.S. government produced works, the output of think tanks (and everyone else) is restricted by copyright. So think tanks need to take an extra step to ensure openness.

(Actually think tanks only need to lead in their domain of political economy — by following the trails blazed by the Open Access movement in scientific publishing.)

This is only the beginning of leading by example for think tanks. When has a pro-market think tank ever subjected its policy recommendations to market evaluation?

Via Reason.

Peter Saint-André published his promised essay Who’s Afraid of the Public Domain?. It’s fairly short and covers a fair amount of ground. I highly recommend it. Two of my favorite paragraphs:

Yet the public domain is nothing to fear. The works of Homer, Sophocles, Confucius, Plato, Aristotle, Dante, Shakespeare, Galileo, Newton, Bach, Beethoven, and other creative giants are all in the public domain. Their works are revered, not reviled. Sure, the fact that the Fifth Symphony is in the public domain enabled Chuck Berry to write “Roll Over Beethoven”; but far from defiling Beethoven’s good name, Berry’s song indicates the level of respect that we still have for Beethoven’s works. I bet you’d love it for your works to be similarly known and respected two hundred years from now (what creative individual wouldn’t?).

…

Because of that corporate influence over the copyright laws (at least in America), you face a choice: accept that your works will never pass into the public domain, or willingly place them there. You can place your works into the public domain immediately (as I have done) or specify in your will that your works shall pass into the public domain upon your death. I find it simpler to place my works in the public domain as soon as I publish them, but only you can decide the best course of action for your own works.

I would add that if you don’t make an effort to free your works, they will disappear, and your creative legacy with them.

One item of fear, uncertainty and doubt spread about the public domain (that would have been out of scope for Saint-André’s essay to address) is that it may not be possible legally to affirmatively place a work into the public domain (see Wikipedia:Granting work into the public domain for some discussion), especially outside the U.S. jurisdiction.

I believe wikipedians attempt to work around this with statements like the one currently in Template:Userpd (emphasis added):

I, the author, hereby agree to waive all claim of copyright (economic and moral) in all content contributed by me, the user, and immediately place any and all contributions by me into the public domain; I grant anyone the right to use my work for any purpose, without any conditions, to be changed or destroyed in any manner whatsoever without any attribution or notice to the creator.

Or one of many specialized “public domain or release all rights legally possible” templates like this one:

This image really is in the Public domain as its author has released it into the public domain. If this is not possible, the author grants anyone the right to use this work for any purpose, without any conditions, unless such conditions are required by law.

I have no idea what a court would make of these, but presumably someone has or will inform the Wikipedia community if they are bogus.

If you aren’t ready to fully embrace the public domain, Creative Commons offers several gradations of partial measures (as well as a form to help you dedicate work to the public domain).

Check out all of Saint-André’s posts about the public domain and digg his essay.

Creative Commons has begun its annual fall fundraiser. Donate if you can or buy a t-shirt in support of your favorite licensethe public domain.

If you’re completely clueless about restrictive copyright and the net, you’re probably in the wrong place. Before you scurry off, watch Get Creative, which introduced Creative Commons nearly four years ago and provides some of the background story.

Otherwise, check out the brand new Wanna Work Together?, which explains Creative Commons more succinctly and features music by J Lesser, who has the awesomest home page ever.

Revver is forgoing its usual fifty percent take on ad clickthroughs for these videos through the end of the year (there’s a static ad at the end of each video).

Please contribute and spread these videos to help ensure a future with plenty of freedom lunches for all.

I currently work for Creative Commons, but heed this blog’s current tagline: My opinions only. I do not represent any organization in this publication.

Doc Searls unfortunately decided the other day that offering his blog under a relatively restrictive Creative Commons NonCommercial license instead of placing its contents in the public domain is chemo for splogs (spam blogs). I doubt that, strongly. Spam bloggers don’t care about copyright. They’ll take “all rights reserved” material, that which only limits commercial use, and stuff in the public domain equally. Often they combine tiny snippets from many sources, probably triggering copyright for none of them.

A couple examples found while looking at people who had mentioned Searls’ post: all rights reserved material splogged, commenter here says “My blog has been licensed with the CC BY-NC-SA 2.5 for a while now, and sploggers repost my content all the time.” A couple anecdotes prove nothing, but I’d be surprised to find that sploggers are, for example, using CC-enabled search to find content they can legally re-splog. I hope someone tries to figure out what characteristics make blog content more likely to be used in splogs and whether licensing is one of them. I’d get some satisfaction from either answer.

Though Searls’ license change was motived by a desire “to come up with new forms of treatment. Ones that don’t just come from Google and Yahoo. Ones that come from us” I do think blog spam is primarily the search engines’ problem to solve. Search results that don’t contain splogs are more valuable to searchers than spam-ridden results. Sites that cannot be found through search effectively don’t exist. That’s almost all there is to it.

Google in particular may have mixed incentives (they want people to click on their syndicated ads wherever the ads appear), but others don’t (Technorati, Microsoft, Ask, etc. — Yahoo! wishes it had Google’s mixed incentives). At least once where spam content seriously impacted the quality of search results Google seems to have solved the problem — at some point in the last year or so I stopped seeing Wikipedia content reposted with ads (an entirely legal practice) in Google search results.

What can people outside the search engines do to fight blog and other spam? Don’t click on it. It seems crazy, but clickfraud aside, real live idiots clicking on and even buying stuff via spam is what keeps spammers in business. Your uncle is probably buying pills from a spammer right now. Educate him.

On a broader scale, why isn’t the Ad Council, or the blogger equivalent, running an educational campaign teaching people to avoid spam and malware? Some public figure should throw in “dag gammit, don’t click on spam” along with “don’t do drugs.” Ministers too.

Finally, if spam is so easy for (aware) humans to detect (I certainly have a second sense about it), why isn’t human-augmented computation being leveraged? Opportunities abound…

Aaron Swartz has a provocative post on creating a legacy. I think it almost impossible to leave a real (by Swartz’s test — leaving the world in a significantly different state than if you had not acted) and good legacy.

Swartz cites simultaneous discovery as evidence that Darwin did not leave an impactful legacy. I think this vastly understates the value of multiple confirmations of a discovery and of arriving at a discovery sooner rather than later. Consider discoveries made or nearly made once, but not widely known nor used for many years. If more people had been working in the relevant fields perhaps the knowledge would not have languished and the world would, right now, be a different place, even if only shifted forward in time. (So perhaps I should not continue to say it is almost imposible to leave a good legacy.)

I do not have a compelling example right now, but countering Swartz’s argument is not even why I’m making this post…

Rather, having been spurred to think about legacy, another reason to add one’s creative output to the commons (e.g., by releasing it under a Creative Commons license) occurs to me: one’s creative legacy.

If you were to die tomorrow your heirs would own exclusive rights to your creative works, possibly forever. If not immediately (likely), then sooner or later your heirs will be unreachable or disagree over the disposition of your copyrights, annihilating your creative legacy. For without permission, your works may not be legally displayed, performed, reproduced, distributed, translated, repurposed, or otherwise used (excepting narrow and increasingly constrained fair use).

Due to unknown or recalcitrant owners your work will go to the grave with you like so much rotting celluloid … unless you choose to give the public permission in advance to use your work, now.

The Adelphi Charter on Creativity, Innovation and Intellectual Property, released a few days ago, looks like a fairly reasonable set of guidelines for thinking about innovation policy. Their one pager (PDF).

I found the history of the Royal Society for the Arts (sponsor of Adelphi) far more interesting than the charter itself. An excerpt:

The original name of the Society was Society for the encouragement of Arts, Manufactures and Commerce. However, an alternative name quickly emerged - the “Premium Society”. Until the mid 19th century, the Society offered cash premiums to inventors and artists as a means of encouraging new and progressive works. This means of supporting innovation often meant hostility towards patents. The reasons for the conflict are complex.

Read the rest.

In Copyright Natural Law Russ Nelson quickly explains “natural law” (not a particularly useful concept in my opinion, but that’s irrelevant here), then proceeds to make the following bizarre statement:

The natural copyright law is a bargain between the publishers of copyrighted works and the recipients of copyrighted works. The publishers promise to eventually put the work into the public domain, and the recipients promise not to copy.

What in the world makes a limited duration state granted monopoly “natural law”? Is Russ conflating “natural law” with “whatever laws the first U.S. Congress made”?

Wikipedia on the origins of copyright:

The origins of copyright systems are generally placed in the practice of various monarchs in granting “letters patent”, arbitrary grants of monopoly over a particular practice or trade.

That sounds like the very opposite of Russ’s non-legislated (and non-decreed by Kings) “natural law” as do the legislative statutes that created limited duration copyright and have since made it quasi-perpetual.

Russ’s conclusion that current copyright policy breeds disrespect for and disobediance of the law is correct, though I wouldn’t put it in terms of natural law, and suspect that the costs and benefits of use and enforcement given technology are far more relevant than any broken bargain for limited duration copyright, “natural” or not.

Tyler Cowen writes:

I am learning just how much early British copyright law kept the price of literature high, and kept books out of public hands.

The curious story of how perpetual copyright survived until 1774, 64 years after the Statute of Anne limited the duration of monopoly publishing rights to 14 years with one optional renewal is told in chapter 6, “Founders” of Lawrence Lessig’s Free Culture. (Failing to obtain legislative copyright extension, publishers argued that common law copyright was perpetual, obviating the statute.)

Modern U.S. publishers, since at least 1976 succeeded politically where their English predecessors failed, obtaining effectively perpetual protection through legislation, obviating the U.S. constitution’s “limited time” clause (nevermind the redefinition of “science and useful arts“). Should publishers fail to obtain another extension by 2019, what alternative methods for controlling pre-1923 works will publishers pursue?

Jimmy Wales, guest blogging at Lessig’s, has started what promises to be an interesting series of posts on ten things that will be free (as in free software):

[T]his is not a dream list of things which I hope through some magic to become free, but a list of things which I believe are solvable in reality, things that will be free. Anyone whose business model for the next 100 years depends on these things remaining proprietary better watch out: free culture is coming to get you.
…

For each of the ten, I will try to give some basic (and hopefully not too ambiguous) definitions for what it will mean for each of them to be “solved”, and we can all check back for the next 25 or 50 years to see how we are doing.

In a subsequent post Wales is even more explicit:

[T]he point of naming the list “will be free” rather than “should be free” or “must be free” is that I am making concrete predictions rather than listing a pie in the sky list of things I wish to see.

I’d love to see similar (but shorter term and more thoroughly specified) predictions as claims on a prediction market. With the right set of claims we can more easily talk about, and plan for, which things are more likely to be free, and when.

Thus far Wales has predicted encyclopedias and curricula will be free. I can’t think of any segments that I am fairly certain will be free, are associated with large businesses, and have not already been alluded to in the comments on his first post.

However, regarding widely deployed software (e.g., operating systems, productivity applications) I have a theory explaining why it will be free: Microsoft Windows and Office have a half life–eventually a release of each will be a failure, at which point the only viable alternaives will be free, and any non-free alternaitves will face slow death–think commercial Unixes in the face of Linux. I’m not going to stand by this theory–it probably assumes too little change, of any sort.

The Electronic Frontient Foundation is 15 and wants “to hear about your ‘click moment’–the very first step you took to stand up for your digital rights.”

I don’t remember. It musn’t have been a figurative “click moment.” Probably not a literal “click moment” either–I doubt I used a mouse.

A frequent theme of other EFF15 posts seems to be “how I become a copyfighter” or “how I became a digital freedom activist.” I’ve done embarrassingly little (the occasional letter to a government officeholder, Sklyarov protests, the odd mailing list or blog post, running non-infringing P2P nodes, a more often lapsed than not EFF membership), but that’s the tack I’ll take here.

As a free speech absolutist I’ve always found the concept of “digital rights” superfluous. Though knowledge of computers may have helped me understand “the issues,” I needed none to oppose crypto export laws, the clipper chip, CDA, DMCA, perpetual copyright extension and the like. Still, I hold “ditigal rights,” for lack of a better term, near and dear. So how I became a copyfighter of sorts: four “click themes,” one with a “click moment.” All coalesced around 1988-1992, happily matching my college years, which otherwise were a complete waste of time.

First, earliest, and most important, I’d had an ear for “experimental” music since before college. At college I scheduled and skipped classes and missed sleep around WEFT schedule. Nothing was better than great music, and from my perspective, big record companies provided none of it. There was and is more mind-blowingly escastic music made for peanuts than I could hope to experience in many lifetimes. I didn’t have the terms just yet, but it was intuitively obvious that there was no public goods provisioning problem for art, at least not for anything I appreciated, while there was a massive oversupply of abominable anti-art.

Second, somewhere between reading libertarian tracts and studying economics, I hit upon the idea that “intellectual property” may be neither. Those are likely sources anyway–I don’t remember where I first came across the idea. I kept an eye out for confirmation and somewhere, also forgotten, I found a reference to Tom Palmer’s Intellectual Property: A Non-Posnerian Law and Economics Approach. Finding and reading the article, which describes intellectual property as a state-granted monopoly privilege developed through rent seeking by publishers and non-monopoly means of producing intangible goods, at my university’s law library was my “click moment.”

Third, I saw great promise in the nascent free software movement, and I wanted to run UNIX on my computer. I awaited 386BSD with baited breath and remember when Torvalds announced Linux on Usenet. I prematurely predicted world domination a few times, but regardless, free software was and is the most concrete, compelling and hopeful sign that large scale non-monopoly production of non-rivalrous goods is possible and good, and that the net facilitates such production, and that freedom on the net and free software together render each other more useful, imporant, and defensible.

Fourth, last, and least important, I followed the cypherpunks list for some time, where the ideas of crypto anarchy and BlackNet were developed. In the ten years or so since the net has not turned inside out nor overturned governments and corporations, yet we are very early in its history. Cypherpunk outcomes may remain vaporware indefinitely, but nonetheless are evocative of the transformational potential of the net. I do not know what ends will occur, but I’ll gladly place my bets on, and defend, the means of freedom and decentralization rather than control and protectionism.

The EFF has done an immense amount of great work over the past 15 years. You should join, and I will update my membership. However, my very favorite thing about the EFF is indirect–I’ve seen co-founder and board member John Gilmore at both drug war and DMCA protests. If you care about digital rights or any rights at all and do not understand descruction of individuals, rights, and societies wreaked by the drug war, there’s no time like the present to learn–the first step needed in order to stand up for your rights.

Blog-a-thon tag: EFF15

On the brouhaha over Bill Gates’ interview with CNET at CES. The relevant bit:

[D]o you think intellectual-property laws need to be reformed?

No, I’d say that of the world’s economies, there’s more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don’t think that those incentives should exist.

And this debate will always be there. I’d be the first to say that the patent system can always be tuned–including the U.S. patent system. There are some goals to cap some reform elements. But the idea that the United States has led in creating companies, creating jobs, because we’ve had the best intellectual-property system–there’s no doubt about that in my mind, and when people say they want to be the most competitive economy, they’ve got to have the incentive system. Intellectual property is the incentive system for the products of the future.

The “communists” bit is the part that has gotten so many people worked up.

The Response. I enjoy calling out Gates’ idiocies as much as the next person, though much of the response I’ve seen has been a tad ebullient. Microsoft fans don’t create fascist art knockoffs when that company’s detractors incorrectly call it fascist. Glenn Otis Brown has the best response I’ve seen, posted on the Creative Commons weblog.

What Would Brezhnev Do? In a communist state would there be no financial incentives for artists? No, they’d simply be employed by the state. The Soviet Union took information control to extremes, including prohibiting use of photocopiers by scientists. I suspect that had the USSR survived to this day, the KGB would now be furiously trying to make Digital Restrictions Management work so as to gain access to a few of the wonders of computing without permitting open communication.

Advice to Gates. Call reformers anarchists rather than communists. For most people “anarchist” is derogatory and you wouldn’t be telling quite as much of a bald-faced lie.

The Real Issue. Forget labels. Gates’ substantial claim is that strong intellectual protectionism drives economic growth. Gates believes this. He isn’t simply shilling for MSFT’s latest strategy. It is on this point that Gates must be rebutted.

Apologies to you the reader and to Robert Nozick for this post’s overwrought title.

Alex Tabarrok writes about An Auction Market for Journal Articles (PDF). Publishers bid for the right to publish a paper. The amount of the winning bid is divided by the authors and publishers of papers cited by the paper just auctioned. Unless I’m missing something all participating journals taken together lose money unless the share of cited authors is zero and transaction costs are nil. Still, the system could increase incentives to publish quality papers, where “subsequent authors will want to cite this” is a proxy for quality.

I’m reminded a tiny bit of BlogShares (”Blogs are valued by their incoming links and add value to other blogs by linking to them”), but especially of Ian Clarke’s FairShare, which is a proposal for speculative donations:

Anybody can “invest” in an artist, and if that artist goes on to be a success, then the person is reward in proportion to their investment and how early they made it. But where does this return on investment come from? The answer is that it comes from subsequent investors. For example, lets say that you invest $10. $4.50 might go straight to the band, $1 might go to the operator of the system, and the remaining $4.50 would be distributed among previous investors in the band, those who invested more early would get a bigger proportion than those who invested less, later-on. Of course, most people will not make a profit, but they are rewarded by knowing that they contributed towards an artist that they liked, and helped reward others who believed in that artist, and who may have brought the artist to their attention.

Under FairShare participating creators taken together and individually would make money, as payments are from without the system, driven by the generosity and greed of fans and speculators.

A system in the spirit of one or both of these proposals could perhaps help fund a voluntary collective licensing scheme of the sort contemplated for digital music, but conceivably applicable to other types of work.

If the journal market idea really could foster a self-sustaining business model it could be a boon to the open access movement. Restricting access is rather pointless when your main business concern is to get your articles cited.

I’ve rambled about open access models elsewhere.

Richard Epstein has an absolutely terrible column in the October 21 Financial Times: Why open source is unsustainable. Epstein begins with the oh-so-original observation that

Intellectual property often creates strange bedfellows on the left and the right sides of the political spectrum.

Left and right may not be the proper characterizations for those referred to, and the alliance isn’t at all strange — it reoccurs often when personal freedom, civil liberty, what have you is threatened. The war on drugs and war in general are two prime threats that motivate reasonable people to become “strange bedfellows.” Open source is perhaps slightly odd in that it is a uniting opportunity, rather than a threat.

On the left, many socialists oppose private property in all its forms.

Many? Possibly some Maoists or similar retreads, but then I’m not very familiar with hard core communist ideology, and those types aren’t very common these days. As far as I know most syndicalists or anti-market anarchists admit to some personal property. Run of the mill socialists certainly do not oppose private property in all its forms.

On the right, some libertarians, such as Tom Bell of Chapman Law School,

Right, schmight. Anyway, links to Tom W. Bell and his copyright writings. Also see Tom G. Palmer and Stephen Kinsella.

are deeply suspicious of the use of intellectual property to block the right of other individuals to think and speak as they choose. While they regard private property as acceptable for physical resources that cannot be used by everyone at once, they draw the line at intellectual property, which can be copied at close to zero cost.

Amazing common sense. Intellectual property (I prefer one of “intangible goods” or “intellectual protectionism”) is a taking of the rights of owners of tangible property, who are denied any use of their real property that infringes on the rights of IP owners.

All this anti-IP rhetoric begs one question: how do we produce IP in the first place?

A question sidestepped by Epstein for the remainder of the article. Aside: perhaps any issue that demands (or rather, for which some demand) government attention in some form — regulation, subsidy, prohibition, etc. — can be thought of as a public goods problem. However, just because something is a public good doesn’t mean that it is not also a private good — production of open source software being just one example. Lynne Kiesling has some musings along these lines, starting with electricity network reliability.

The middle part of Epstein’s column is a morass of classic fear, uncertainty, and doubt regarding open source software, all terribly uninformed. A few counters:

• Open source does produce excellent non-server software. If you aren’t reading this in Mozilla Firefox chances are you’re missing out big time. Also see OpenOffice, the GIMP, the GNOME Desktop, Inkscape, Scribus, Eclipse and many more.
• Individual hackers have been and always will be incredibly important and productive in ways Epstein and DeLong probably just don’t get, but open source is now integral to many of the largest for-profit software concerns (e.g., IBM and Oracle) and software consumers (e.g., Wall Street).
• Even if they did hold water, a serious anti-open source commentator would not use anti-GPL arguments as the linchpin of their anti-open source argument. Three open source applications stand above all others in terms of market share: BIND, Sendmail, and Apache . None of these are GPL’d.

This quote from Epstein is good for a chuckle:

But how do the insiders, such as Linus Torvalds, cash out of the business that they built? And in the interim, how do they attract capital and personnel needed to expand the business? Traditional companies have evolved their capital structures for good reason.

Torvalds didn’t build a business, not that we have to worry about him eating. Rather than speculating in the abstract, Epstein should study how successful open source companies have actually expanded their businesses. And how and why traditional companies have seen it in their best interest to pay developers to work on open source.

So what does Epstein really want? That comes at the very end of his column:

But suppose this analysis is wrong. One clear policy implication remains: this novel form of business association should succeed or fail on its own merits. The do-or-die question is whether open source offers a low cost solution to particular problems. Ordinary companies will make just those calculations, but government agencies may be swayed to take a different tack, as has been suggested by a number of EU studies. That temptation should be avoided. Governments are bad at forcing technology by playing favourites. If open source is less effective than proprietary software, that gap should not be ignored by positing some positive network externalities that come from giving it a larger base. Proprietary systems also show positive network effects from increased users, as software designers are always attracted by a larger installed base. It’s a tough world out there, in which no one should be exempted from the general competitive pressures of the marketplace. The fiduciary duties of government to all citizens demand no less.

I love Epstein’s subtle abuse of the word implication.

I strongly agree that government is terrible at picking technology winners. That’s why I’ll probably vote against California’s stem cell research bond, despite being strongly in favor of any and all uses of fetal stem cells.

However, to the extent government is a technology consumer, it ought to be an intelligent consumer. Julian Sanchez made an excellent argument for open source in government — especially in government — two years ago in a column titled Open Source and Its Enemies:

With proprietary software, government’s potentially standard-setting procurement choices give it the role of market kingmaker.

A certain recipe for inefficient rent seeking behavior.

an organization for a good future

In 1998 I registered wifo.org (wayback June 2000 copy) with the intention of using the platform to mock the World Intellectual Property Organization and promote the study of production of nonrivalrous goods, with a decided bias against government-granted monopolies in such goods. My battle against life in the late 90s was mostly a losing one, so I never carried through.

Anyway, I now recommend you sign the Geneva Declaration on the Future of the World Intellectual Property Organization AKA “Proposal for the Establishment of a Development Agenda for WIPO” offered by Argentina and Brazil to the WIPO General Assembly last week. I’m not thrilled with all of the language, but upon first read it looks quite excellent given my low estimation of UN documents. Excerpt:

At the same time, there are astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models. We are witnessing highly successful campaigns for access to drugs for AIDS, scientific journals, genomic information and other databases, and hundreds of innovative collaborative efforts to create public goods, including the Internet, the World Wide Web, Wikipedia, the Creative Commons, GNU Linux and other free and open software projects, as well as distance education tools and medical research tools. Technologies such as Google now provide tens of millions with powerful tools to find information. Alternative compensation systems have been proposed to expand access and interest in cultural works, while providing both artists and consumers with efficient and fair systems for compensation. There is renewed interest in compensatory liability rules, innovation prizes, or competitive intermediators, as models for economic incentives for science and technology that can facilitate sequential follow-on innovation and avoid monopolist abuses. In 2001, the World Trade Organization (WTO) declared that member countries should “promote access to medicines for all.”

Humanity stands at a crossroads - a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies? Much will depend upon the future direction of the World Intellectual Property Organization (WIPO), a global body setting standards that regulate the production, distribution and use of knowledge.

As you could guess from my description of a “World Intellectual Freedom Organization” I’m very interested in “models for economic incentives for science and technology that can facilitate sequential follow-on innovation and avoid monopolist abuses.” I admit that I’d never heard of compensatory liability rules or competitive intermediators. Google knows of only a few documents with the former term, excepting copies of the aforementioned declaration.

Using Liability Rules to Stimulate Local Innovation in Developing Countries: A Law and Economics Primer (PDF) appears to be the paper describing compensatory liability rules. At a glance it appears CLR is akin to a compulsory license for subpatentable innovations (which under the current regime are all too often patented). Sounds like a reasonable potential reform.

Google also knows next to nothing about competitive intermediators, which appear to be an invention of the authors of A New Trade Framework for Global Healthcare R&D. The proposal seems to amount to R&D funded by a payroll tax. Very boring.

The X-Prize has raised the profile of innovation prizes immensely, but they are an old idea that has deserved resurrection for a long time. I recommend starting with Robin Hanson’s Patterns of Patronage: Why Grants Won Over Prizes in Science (PDF). I’ve donated a small amount ($122.45 — can you guess why?) to the Methuselah Mouse Prize and will donate more to this and other science prizes in the future — I’m very keen on the concept.

Compensatory liability rules, innovation prizes, or competitive intermediators are only three of many interesting ideas in this vein. I’ll write about others in the fullness of time.