Post Intellectual Protectionism

Richard Epstein’s open source leavings

Sunday, October 24th, 2004

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 Stephan 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.

Posted in Economics, Intellectual Protectionism, Open Source, Politics, Public Domain, Public Goods | 7 Comments »

World Intellectual Freedom Organization

Thursday, October 14th, 2004

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.

Posted in Economics, Health, Intellectual Protectionism, Politics, Prediction Markets, Public Domain, Public Goods | 6 Comments »

Brutally Bogus Link Policy Clearinghouse

Wednesday, October 13th, 2004

Linking policies are stupid, but Boing Boing’s hack (no site with a linking policy, other than this one, may link to BB) doesn’t seem like the right response, despite a similarity to the GPL hack.

Instead of demanding that do-not-link-to-me sites not link to anti-link-policy-folk, it makes sense to me to do what the former ask, as the policy in question is self-defeating — inbound links are all important, ask any SEO huckster. However, antis need to go further, as simply not doing what do-not-link-to-me sites stupidly do not want us to do isn’t exactly a roof raising call to action.

The next step is to create a links-that-don’t-want-to-be clearinghouse for the purpose of destroying whatever GoogleJuice the foolish sites may have. So imagine a site with a do-not-link-to-me policy, example.com. Sites that would otherwise link to a page on example.com should instead prefix their link with http://stupidlinkpolicy.net/, e.g., http://stupidlinkpolicy.net/http://example.com/foo/bar.html. The content at this last URL would include the title and a page rank boosting summary of the content at http://example.com/foo/bar.html and an explanation of why the user hasn’t landed at the site they probably expected. If example.com ever removes its stupid linking policy, stupidlinkpolicy.net would redirect requests for http://stupidlinkpolicy.net/http://example.com/foo/bar.html to http://example.com/foo/bar.html.

A stupid link policy clearinghouse of this sort would be very easy to create, lots of work to maintain. Someone should do it. :-)

I realize that this doesn’t affirm the right to link whatever stupid link policies may say. Perhaps in order to do this and as a convenience to hapless searchers the clearinghouse itself would link to the pages it discusses, though via redirects so as to still withold juice.

Posted in Free Speech, Intellectual Protectionism, Peeves | 2 Comments »

Intellectual Protectionism amelioration committee

Monday, October 4th, 2004

IPac

is a nonpartisan group dedicated to preserving individual freedom through balanced intellectual property policy.

I signed their statement of principles and strongly encourage you to do the same.

However, the following mantra, excerpted from principle #1, grates:

Creators of ideas and inventions have the right to be compensated for their work

IPJustice has a nearly identical principle, #2 on their list:

Creators deserve to be compensated.

This “principle” feels to me like a nutty mix of buying into protectionist propaganda and labor theory of value* sentiments. It would be perhaps be better to say that creators should have the right to restrict access to their creations. Given a monopoly in their work, creators or their assignees may be able to extract more payment from potenential users than they could without monopoly privileges, but they certainly don’t have a right to be compensated merely for creating. If that were the case we’d have huge[r] inefficiencies from overproduction of intangible goods.

Back to IPac, they seem to be taking the sensible strategy of backing three candidates from each of the two U.S. establishment parties. I suspect Brad Carson is the only candidate in any sort of race (the other five should all easily win). I looked at Carson’s congressional web page and wondered why IPac is supporting four Republicans and two Democrats. Turns out Carson is actually a Democrat — from Oklahoma, where apparently Democrats are anti-gay marriage and pro-gun (top two stories on aforementioned site). An explanation.

* I can’t find a single excellent page on the LTV. Most are either hopelessly mired in Marx-derived argumentation, which as far as I can tell removes the most trenchant LTV criticisms by rendering the LTV meaningless (tautological) as an economic concept, trailing off into Marxian “class” analysis (the current Wikipedia page, linked above, tends toward this — I’ll shirk my responsibility to fix it for now) or are flippant dismissals of LTV that usually ignore the Marxian evasions (maybe justified) , criticizing Ricardo’s earlier LTV and often misattributing it to Marx (a page tending in that direction).

Posted in Economics, Intellectual Protectionism, Politics | 4 Comments »

Seybold DRM Roundtable

Tuesday, August 17th, 2004

Tomorrow I’ll be on a DRM panel at the Seybold San Francisco publishing conference. See my Creative Commons weblog post for more info.

No, I will not be talking about porn restriction management.

Posted in Creative Commons, DRM, Intellectual Protectionism | 1 Comment »

Porn Restriction Management to the Future

Wednesday, August 11th, 2004

The porn industry and porn consumers are often said to be early adopters of consumer technology, e.g., VCRs and modems. So to what extent is porn delivered with Macrovision, CSS, region codes, and other copy protection methods as relevant to the formats in question?

I searched briefly but didn’t turn up any good answers, just assertions like

We can expect DRM to become commonplace as more porn producers take measures to prevent pirating of their content.

and

I should add that the porn market is also hot for DRM, but not too many vendors want to call attention to that.

and others wondering or speculating that porn site competition will stop DRM:

Some websites have begun to encode pr0n with drm requiring you to download a license everytime you want to watch the movie. I’d just stop using those sites. They’ll get the hint when their traffic starts moving to sites with no drm. Hopefully. It doesn’t really make sense to drm a 10 second clip when it takes 20 sec. to dl the license.

I’m looking for data regarding DRM use for pornographic content. Please tell if you have any ideas or know a good place to ask, even if you’re reading this long after the posting date.

Update 20040813:Jake (last cite above) comments below that a company is already selling DRM to the porn market. Actually there are several. I’d be surprised if any DRM concern isn’t making some effort in this regard. My question has to do with whether many in the porn content industry are buying.

Tom W. Bell adds another guess:

My guess: No. Porn consumers seem content with cheaply produced and only modestly original works. Porn producers thus need not recover the sort of fixed up-front costs that plague the traditional film industry.

That’s my guess as well, but I have no evidence. Thus the query.

Posted in DRM, Economics, Intellectual Protectionism | 5 Comments »

Bill Gates for Broken Windows

Sunday, July 11th, 2004

Slashdot is running a story today headlined Gates: Open Source Kills Jobs, riffing on a Gates speech given in Malaysia. Asia Computer Weekly has this quote from the speech:

If you don’t want to create jobs or intellectual property, then there is a tendency to develop open source. It is not something you do as a day job. If you want to give it away, you work on it at night.

Does Gates have a reasonable point? No. He’s retelling the parable of the broken windows (how appropos!), also known as the broken window fallacy.

In a nutshell, the fallacy says that breaking windows is good for the economy, as it creates the need for replacements, and thus “creates jobs.” This is of course nuts. At the end of the replacement process, we’re worse off by having consumed whatever resources it takes to produce a window and we can’t use those resources for whatever we would’ve used them for had the window remained intact. Presumably spending resources on windows isn’t our first choice, so we’re also worse off by whatever the “utility” difference between our first choice and windows.

Bill Gates is essentially making the same fallacious argument — if we didn’t have open source software we’d be better off, because we’d have to pay Microsoft to develop equivalents, and they’d hire people. That’s no different from saying we’d be better off with broken windows, because someone would get work creating replacements. If Gates’ fallacious argument is true, let’s destroy open source, and why not all software written in the past ten years. That’ll create a lot of jobs for programmers, right? (Actually, no it won’t.) Windows 3.1 wasn’t that bad. Let’s do it for the jobs!

One reason people sometimes buy the broken window fallacy is that they confuse the purpose of economic activity, which is to fulfill needs, i.e., to create wealth, not to create work. Software is wealth, and open source software is wealth available to anyone, to use, build upon, and learn from. If open source does put some Microsofties out of work, fine, we’d be better off with them doing something else anyway.

Posted in Economics, Intellectual Protectionism, Open Source, Peeves | 7 Comments »

Client-side remixing isn’t so loopy

Saturday, March 13th, 2004

Lucas Gonze’s analysis of client-side remixing is spot on. Summary: client-side remixing is to precise syncrhonization as HTML is to precise layout. If you don’t need precision, enjoy.

I see three limits to client-side remixing. All can be raised:

  • Bad client software. It either doesn’t work or barely works and you need a very keen eye to find a gratis download amongst enticements to buy a super-premium subscription version (cf RealPlayer).
  • Lack of expressivity. Remixers don’t just overlay source segments, they also apply various effects to the same.
  • Streaming-like experience. In order to obtain a smooth client-side remix playback you (actually your client, this is a subset of “bad client software”) will have to download most of the needed source content first. I often have a bad experience with playing-while-downloading of individual songs and videos over the net, nevermind many coordinated sources.

I suspect that with excellent client software the client-side remix experience could be very good. Lack of expressivity seems like the toughest hurdle to me. However, if said excellent client software can download and run code safely … effectlets?

Video games seem like a highly constrained example of what client-side remixing could do. They pull off co-ordinating lots of different source media (sometimes all local, but that’s beside the point) with code quite well, versus hardcoding different sources into a single stream at the point of production.

However, anytime in the near future using client-side remixing to evade those who would prevent distribution of The Grey Album and the like is pointless. Client-side remixing isn’t up to the task, and you can still download the album from the web after weeks of brouhaha, nevermind P2P networks.

Memory augmentation: cc-metadata client-side remixing [1] [2]

Posted in Blogs, Intellectual Protectionism, Music | 1 Comment »

Voluntary Collective Licensing

Wednesday, February 25th, 2004

The EFF has released a white paper outlining a proposed solution to the file sharing wars. It may strike one as compulsory licensing lite, but that perhaps is unfair, as everything is voluntary in the proposal. Still, the system would have to deal with versions of the problems with compulsory licensing (not an exhaustive list).

The one thing that really irritates me about this proposal (and it irritates me every time I hear it, which is often: example) is the mantra that “artists and copyright holders deserve to be fairly compensated.” Yeah, whatever. For some highly variable and contentious definition of “fair”.

Derek Slater provides links here.

Discussion at InfoAnarchy.

Posted in Economics, Intellectual Protectionism, P2P, Peeves | 3 Comments »

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