Post Public Domain

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.

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.

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

Wikidata II

Thursday, October 30th, 2014

Wikidata went live two years ago, but the II in the title is also a reference to the first page called Wikidata on which for years collected ideas for first class data support in Wikipedia. I had linked to Wikidata I writing about the most prominent of those ideas, Semantic MediaWiki (SMW), which I later (8 years ago) called the most important software project and said would “turn the universal encyclopedia into the universal database while simultaneously improving the quality of the encyclopedia.”

SMW was and is very interesting and useful on some wikis, but turned out to be not revolutionary (the bigger story is wikis turned out to be not revolutionary, or only revolutionary on a small scale, except for Wikipedia) and not quite a fit for Wikipedia and its sibling projects. While I’d temper “most” and “universal” now (and should have 8 years ago), the actual Wikidata project (created by many of the same people who created SMW) is rapidly fulfilling general wikidata hopes.

One “improving the encyclopedia” hope that Wikidata will substantially deliver on over the next couple years and that I only recently realized the importance of is increasing trans-linguistic collaboration and availability of the sum of knowledge in many languages — when facts are embedded in free text, adding, correcting, and making available facts happens on a one-language-at-a-time basis. When facts about a topic are in Wikidata, they can be exposed in every language so long as labels are translated, even if on many topics nothing has ever been written about in nor translated into many languages. Reasonator is a great demonstrator.

Happy 2nd to all Wikidatians and Wikidata, by far the most important project for realizing Wikimedia’s vision. You can and should edit the data and edit and translate the schema. Browse Wikidata WikiProjects to find others working to describe topics of interest to you. I imagine some readers of this blog might be interested in WikiProjects Source MetaData (for citations) and Structured Data for Commons (the media repository).

For folks concerned about intellectual parasites, Wikidata has done the right thing — all data dedicated to the public domain with CC0.

Generative acknowledgement

Thursday, July 31st, 2014

Robin Sloan, The secret of Minecraft: And its challenge to the rest of us

In the 2010s and beyond, it is not the case that every cultural product ought to be a generative, networked system.

It is, I believe, the case that all the really important ones will be.

Nathan Matias, Designing Acknowledgement on the Web:

A system which acknowledges the beauty of cooperative relationships can’t be based on the impersonal idea of hypertext or the egocentric notion of authorship. It can’t rely on licenses to threaten people into acknowledging each other.

Via 1 2 3 and confirmation bias about which I can’t think of anything smart to say, so I’ll include a fun word: contextomy. Neither of the above reaches that bar, but I’ll try harder next time.

Posts on the ought of generative, networked production and intellectual parasite debasement of acknowledgement.

“Open policy” is the most promising copyright reform

Thursday, June 26th, 2014

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

The institute and its parent Open Policy Network define:

Open Policy = publicly funded resources are openly licensed resources.

(Openly licensed includes public domain.)

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

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

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

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

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

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

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

{ "title" : "API commons II" }

Tuesday, June 24th, 2014

API Voice:

Those two posts by API Evangelist (another of his sites) Kin Lane extract bits of my long post on these and related matters, as discussed at API Con. I’m happy that even one person obtained such clear takeaways from reading my post or attending the panel.

Quick followups on Lane’s posts:

  • I failed to mention that never requiring permission to implement an API must include not needing permission to reverse engineer or discover an undocumented API. I do not know whether this implies in the context of web service APIs has been thoroughly explored.
  • Lane mentions a layer that I missed: the data model or schema. Or models, including for inputs and outputs of the API, and of whatever underlying data it is providing access to. These may fall out of other layers, or may be specified independently.
  • I reiterate my recommendation of the Apache License 2.0 as currently the best license for API specifications. But I really don’t want to argue with pushing CC0, which has great expressive value even if it isn’t absolutely perfect for the purpose (explicit non-licensing of patents).

API commons

Thursday, May 29th, 2014

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

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

A few follow-up thoughts after the notes.

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

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

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

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

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

and what restrictions can be pertinent:

  1. Copyright
  2. Patent

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Without Intellectual Property Day [edit]

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

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

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

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

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

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

Contributing to a Creative Commons

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

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

Kickstarting and Threshold Pledges

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

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


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

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

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

Protect commons from patents

Friday, April 11th, 2014

Rob Landley has a good idea: software patents shouldn’t apply to public domain software. This is exactly the kind of commons-favoring reform that ought be topmost on the agenda of anyone who cares about a good [digital] future. It will take years for many such reforms to be feasible. This only means it is urgent for commoners of all free/open stripes to begin thinking of themselves collectively as a politically potent self-interested group, not as merely surviving through private opt-outs from increasingly bad regulation and reaction against apparent existential threats.

I’m a huge fan of the public domain and think that among private opt-outs, public domain instruments ought be used much more than they are. Landley makes an interesting case (historical and otherwise, read his full post) for limiting protection from software patents to public domain software rather than any free/open source software, but I disagree — in this reform step, it makes sense to protect developers and users of any free/open source software from patents with regard to that software.

Up to the last paragraph the rest of this post is dedicated to this disagreement (and in another sense of dedicated, to the public domain, as is everything by me), but don’t let that distract from my overall appreciation of Landley’s post — read the whole thing (his blog is also interesting overall, stylistically like early blogs, and it does have posts back to 2002, though I’ve only been following it approximately since the first link in previous paragraph: see link text “disagree”, appropriately enough).

Landley writes:

The reason to say “public domain” instead of “open source” is partly that open source is difficult to legally define

Public domain hasn’t got that problem. It avoids the whole can of worms of what is and isn’t: the code is out there with zero restrictions.

1) Existing law and regulation deals with “open source”, e.g. the U.S. Department of Defense and the Italian government. This is no significant obstacle. On the other hand, “public domain” has another problem: FUD about whether it is “legally possible” to put new works in the public domain and whether various public domain instruments “work”. This FUD needs to be combated, but I think it’ll be more effective to do so in part by getting public domain instruments recognized as free/open instruments by various gatekeepers than by dumping FUD on the same.

The price for freedom from patents should be zero restrictions: if the authors have no control over what people can do with it, why should uninvolved third parties have a say? Ideally the smooth, frictionless legal surface of the public domain should go both ways.

That’s the constitutional argument: freely redistributable, infinitely replicable code serves the stated constitutional purpose of copyrights and patents better than patents do. Releasing your copyrights into the public domain should also prevent patent claims on that code.

2) That’s a fine assertion, but it’s really outside the free/open source (and nearby) consensus on software patents: they should be abolished, i.e., one should not have to give up anything to be protected from them. Changing the focus to strategically demanding freedom from patents for free/open source software (while still agreeing they ought be abolished for all) would mark a huge shift in the imagination of the movement(s). Limiting the scope of protection to only public domain software: how is it imaginable to take that idea beyond an interesting blog post? I wish a huge constituency for public domain software existed, but as of now it is a rounding error.

3) Zero restrictions is a fine ideal (indeed, copyright and patent should be abolished entirely), but whether viewed as a “price” or grant of permissions, releasing work under any free/open license makes very significant grants. Attendant conditions may be annoying, self-defeating, necessary, or something else depending on one’s perspective (I try to view them charitably as prototypes for more effective regulation not based on copyright holder whim, but also think it is worthwhile to try to improve them, and, as above, encourage more use of public domain instruments) but obviously these licenses are adequate to facilitate vibrant commons projects (essentially all well known free/open source software, except for SQLite and djbware, which use public domain dedications), and it is the actual commons that needs to be favored, not some idealized zero friction symmetry between patent and copyright.

The historical reason to say “public domain” instead of “open source license” is possible legal precedent: back when software was unpatentable, it was also uncopyrightable. An awful lot of public domain software used to exist, and when people added copyrights to it, they opened it to patents as well. Software that _isn’t_ copyrighted, historically, also wasn’t patented. If somebody tries to enforce patents against public domain software, we can make a clear distinction and ask a judge to opine.

4) I’m not a lawyer, but I’d bet heavily against us winning. Happy to be wrong.

5) I’ve already mentioned size of the constituency for (2) and quantity of (3) free/open source software relative to only public domain software, but these bear repeating in the form of size of benefit. Protecting all free/open source software from patents would immediately benefit millions of free/open source software developers and users, and solve big problems for free/open source software and standards. There would be essentially no immediate benefit from only protecting public domain software from patents. Long term it would encourage more public domain software. To make that extremely lopsided trade off one has to believe that free/open source licenses are really, really awful relative to the public domain. I can understand that belief emotionally, but don’t think what evidence we have about success of various projects bears the belief out. Rather, the specific conditions (including none) just aren’t all that important so long as a minimum of permissions are granted. Exclusive public domain advocates may hate licenses, but licenses just don’t matter that much!

As the title of this post implies, free/open source software (inclusive of public domain software) is not the only commons threatened by patents that ought be favored through blanket protection from patents. Defining some of these (e.g., for seeds, 3D printing, general purpose robotics, and synthetic biology?) will be harder, in part because there may be no “well understood term in the trade” such as “open source”, but this is a much smaller hurdle (indeed, a sub-sub-task of) than organizing the relevant constituencies and making the case to the public and policymakers that favoring commons is indeed good policy.