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The spread of the Linux operating system kernel has directed attention at the free software movement. This paper shows why free software, far from being a marginal participant in the commercial software market, is the vital first step in the withering away of the intellectual property system.
One of the more puzzling conundrums of synergy can be found in what one might call the money-to-stuff ratio. Basically, consumers want more stuff for less money; companies want to sell more stuff, but for more money. Synergy makes a vague promise to consumers that it will deliver the first scenario, and to investors that it will deliver the second. The underlying problem certainly isn't that people are resistant to learning, and embracing, new ways of consuming music, movies, books or other digital content. The obvious example — to the great chagrin of record label executives everywhere — is in the realm of music. Millions of music fans are enthralled with the benefits of new synergies between their computers and their stereos. Particularly for those who are ambivalent about intellectual property rights, it's proved to be a spectacular means of pumping up their money-to-stuff ratio. Unfortunately for record companies, artists and even the various newfangled start-ups that hoped to exploit this turn of events, pretty much nobody has figured out how to make a dime off of it In fact, this form of synergy has been actively resisted.
One of the more puzzling conundrums of synergy can be found in what one might call the money-to-stuff ratio. Basically, consumers want more stuff for less money; companies want to sell more stuff, but for more money. Synergy makes a vague promise to consumers that it will deliver the first scenario, and to investors that it will deliver the second.
The underlying problem certainly isn't that people are resistant to learning, and embracing, new ways of consuming music, movies, books or other digital content.
The obvious example — to the great chagrin of record label executives everywhere — is in the realm of music. Millions of music fans are enthralled with the benefits of new synergies between their computers and their stereos. Particularly for those who are ambivalent about intellectual property rights, it's proved to be a spectacular means of pumping up their money-to-stuff ratio. Unfortunately for record companies, artists and even the various newfangled start-ups that hoped to exploit this turn of events, pretty much nobody has figured out how to make a dime off of it In fact, this form of synergy has been actively resisted.
LAW INVOLVING the online world is hot right now. Law schools trying to stay current have courses in it, which tend to be popular with a generation of law students reared on Wired magazine and Napster. Experts in so-called cyberlaw typically have technology-friendly legal views, and are thus frequent guests at the tech world’s many conferences. They’re also quoted all the time in media accounts of online legal disputes. There is, though, a much less well-known but equally determined group of legal experts — let’s call them the “cyberskeptics” — who are deeply troubled by just about everything about this trend. The skeptics start by questioning the very existence of cyberspace, which they say is no more real than a “phone space” involving all the people on the telephone at a given time. They go on to argue that something happening online shouldn’t be treated any differently by the law than if it occurred on Main Street.
LAW INVOLVING the online world is hot right now. Law schools trying to stay current have courses in it, which tend to be popular with a generation of law students reared on Wired magazine and Napster. Experts in so-called cyberlaw typically have technology-friendly legal views, and are thus frequent guests at the tech world’s many conferences. They’re also quoted all the time in media accounts of online legal disputes.
There is, though, a much less well-known but equally determined group of legal experts — let’s call them the “cyberskeptics” — who are deeply troubled by just about everything about this trend. The skeptics start by questioning the very existence of cyberspace, which they say is no more real than a “phone space” involving all the people on the telephone at a given time. They go on to argue that something happening online shouldn’t be treated any differently by the law than if it occurred on Main Street.
This Article suggests that thinking of cyberspace as a place,and the consequent legal propertization of cyberspace,is leading us to a tragedy of the digital anticommons.Recent laws and decisions are creating millions of splintered rights in cyberspace,and these rights are destroying the commons-like character of the Internet,which has previously lead to such extraordinary innovation.If we continue down the fork we currently are traveling,we risk creating a digital anticommons that would destroy much of the innovations we have created to date.Historians will look back on our time and wonder when we have seen what the Internet could be how we could have sat and watched as the tragedy of the digital anticommons occurred.
In the end, William Gibson was wrong: cyberspace is not another place, it's just part of this space. There is no 'there, there' : in fact, it isn't really there at all. The illusion is, in the end, only an illusion, however consensual it may be. Not only does 'meatspace rule', but 'meatspace rules rule' - the laws and regulations that govern the Net, whether they are legal, social, architectural or code-based, will all come from the real world, where judges, lawyers, programmers, politicians and - in some way -citizens get to decide how our online activities and our real world lives mesh and are linked. The United States is incapable, for the reasons I've described, of understanding this or of escaping its constitutionally-determined destiny to attempt to establish hegemony over cyberspace. It cannot be allowed to succeed, and so those of us within Europe need to begin to work now to extend our culture onto the Net in all its complex glory. We need to build our borders online and offer our citizens protection within those borders, and escape from America.
In the end, William Gibson was wrong: cyberspace is not another place, it's just part of this space. There is no 'there, there' : in fact, it isn't really there at all. The illusion is, in the end, only an illusion, however consensual it may be. Not only does 'meatspace rule', but 'meatspace rules rule' - the laws and regulations that govern the Net, whether they are legal, social, architectural or code-based, will all come from the real world, where judges, lawyers, programmers, politicians and - in some way -citizens get to decide how our online activities and our real world lives mesh and are linked.
The United States is incapable, for the reasons I've described, of understanding this or of escaping its constitutionally-determined destiny to attempt to establish hegemony over cyberspace.
It cannot be allowed to succeed, and so those of us within Europe need to begin to work now to extend our culture onto the Net in all its complex glory. We need to build our borders online and offer our citizens protection within those borders, and escape from America.
Instead, technologists should be doing what comes naturally: inventing technology that outpaces the law and could even make new laws irrelevant. "They're much better off doing what they do best, writing code," says Sonia Arrison of the Pacific Research Institute, a free-market think tank in San Francisco. "That's where their competitive advantage lies." Put another way, who made a bigger difference: Yet another letter-scribbling activist or Phil Zimmermann, who wrote the Pretty Good Privacy (PGP) encryption software? How about Shawn Fanning, the man who created Napster? Or the veterans of the Internet Engineering Task Force, which oversees the fundamental protocols of the Internet?
Instead, technologists should be doing what comes naturally: inventing technology that outpaces the law and could even make new laws irrelevant.
"They're much better off doing what they do best, writing code," says Sonia Arrison of the Pacific Research Institute, a free-market think tank in San Francisco. "That's where their competitive advantage lies."
Put another way, who made a bigger difference: Yet another letter-scribbling activist or Phil Zimmermann, who wrote the Pretty Good Privacy (PGP) encryption software? How about Shawn Fanning, the man who created Napster? Or the veterans of the Internet Engineering Task Force, which oversees the fundamental protocols of the Internet?
Technology has made the CD-centric business model of the music industry obsolete. Fifteen years ago, the CD became the superior alternative medium for storing and transporting music. Today, though, disks represent the truly low-cost storage medium, and the Internet represents the low-cost transportation medium for delivering music to listeners. In short, something like Napster was inevitable. That music has become much cheaper to store and to transport would be good news for the music industry, if they would listen to the technology. Instead, they cannot seem to bear the thought of a transition away from the CD-centric business model. Like the people in a 1960's cigarette commercial, the industry would rather fight than switch.
Technology has made the CD-centric business model of the music industry obsolete. Fifteen years ago, the CD became the superior alternative medium for storing and transporting music. Today, though, disks represent the truly low-cost storage medium, and the Internet represents the low-cost transportation medium for delivering music to listeners. In short, something like Napster was inevitable.
That music has become much cheaper to store and to transport would be good news for the music industry, if they would listen to the technology. Instead, they cannot seem to bear the thought of a transition away from the CD-centric business model. Like the people in a 1960's cigarette commercial, the industry would rather fight than switch.
It's remarkable to me that lots of people who care deeply about free speech and free enterprise -- hard core libertarians, dynamists, objectivists and other enemies of Big Government and Big Regulation -- would rather carp about yet another left-wing hypocrisy in a Times op-ed piece than take notice of the most big-gov, big-reg, big-tax campaign to destroy a marketplace in recent memory. And on the Net, no less, where hundreds of these people blog every day. Shit, why isn't Rush Limbaugh all over this thing? Ya gotta wonder why, no? The answer is simple: there's no story. Hollywood is winning in a rout, and the victory was secured a long time ago, when the top strategists in the most politically correct industry the world has ever known -- Entertainment -- wisely began wrapping their anti-market agenda in the rhetoric of conservatism: "rights," "property," "security," "protection," "enforcement." They even labored, successfully, to render irrelevant the old leftist value of "fairness," by moving the base meanings of copyright from usage and fairness to ownership and property rights. Even if it wasn't fully conscious, the results tell it all: the strategy was flat-out brilliant.
It's remarkable to me that lots of people who care deeply about free speech and free enterprise -- hard core libertarians, dynamists, objectivists and other enemies of Big Government and Big Regulation -- would rather carp about yet another left-wing hypocrisy in a Times op-ed piece than take notice of the most big-gov, big-reg, big-tax campaign to destroy a marketplace in recent memory. And on the Net, no less, where hundreds of these people blog every day. Shit, why isn't Rush Limbaugh all over this thing?
Ya gotta wonder why, no?
The answer is simple: there's no story. Hollywood is winning in a rout, and the victory was secured a long time ago, when the top strategists in the most politically correct industry the world has ever known -- Entertainment -- wisely began wrapping their anti-market agenda in the rhetoric of conservatism: "rights," "property," "security," "protection," "enforcement." They even labored, successfully, to render irrelevant the old leftist value of "fairness," by moving the base meanings of copyright from usage and fairness to ownership and property rights. Even if it wasn't fully conscious, the results tell it all: the strategy was flat-out brilliant.
Hollywood may be the entertainment capital of the world, but the real song and dance is being played out in Washington. That's the real seat of power for the entertainment industry, which constantly tries to convince the nation's representatives to push through a continuing array of draconian, anti-consumer proposals, seemingly aimed at turning supposedly valued customers into content-absorbing zombies under their media masters' total control. The thrust of these plans is not merely to protect the quite valid intellectual property rights of the media giants, but to fundamentally reshape and restrict the very nature of digital technology in ways that serve mainly the entertainment titans themselves, and the concepts of fair use and rights of consumers be damned. These laws and proposals form a veritable alphabet soup of content and copy control, including the already enacted DMCA, and the proposed SSSCA (which morphed into the CBDTPA). All of these schemes, along with the Sonny Bono Copyright Term Extension Act (now pending before the U.S. Supreme Court) are facets of a common theme -- to vest effectively perpetual and absolute dominion over most media to the powerful conglomerates that control the entertainment industry.
Hollywood may be the entertainment capital of the world, but the real song and dance is being played out in Washington.
That's the real seat of power for the entertainment industry, which constantly tries to convince the nation's representatives to push through a continuing array of draconian, anti-consumer proposals, seemingly aimed at turning supposedly valued customers into content-absorbing zombies under their media masters' total control.
The thrust of these plans is not merely to protect the quite valid intellectual property rights of the media giants, but to fundamentally reshape and restrict the very nature of digital technology in ways that serve mainly the entertainment titans themselves, and the concepts of fair use and rights of consumers be damned.
These laws and proposals form a veritable alphabet soup of content and copy control, including the already enacted DMCA, and the proposed SSSCA (which morphed into the CBDTPA).
All of these schemes, along with the Sonny Bono Copyright Term Extension Act (now pending before the U.S. Supreme Court) are facets of a common theme -- to vest effectively perpetual and absolute dominion over most media to the powerful conglomerates that control the entertainment industry.
In 2010, the concept of copyright will celebrate its 300th anniversary dating back to England's Statute of Anne. Over the past three centuries, copyright laws promoted intellectual freedom and discourse while ensuring a small incentive for the creative author. Interestingly, with the onslaught of technology and promises of greater opportunity to share and communicate, copyright is now a hindrance to these ideals, serving only the moneyed interests of owners. Historically, copyright protections were afforded to promote expressive discourse fundamental to a democratic society. Today, the very notion of intellectual property serves to commoditize expressive ideas, rather than fostering their dissemination. Whereas initially the provision of an economic benefit was secondary to the promotion of original works, modern copyright inverts this ideal in a continuing effort to establish a marketplace for ideas. In doing so, modern-day copyright holders focus solely on financial gain to he detriment of the true purpose of copyright.
In 2010, the concept of copyright will celebrate its 300th anniversary dating back to England's Statute of Anne. Over the past three centuries, copyright laws promoted intellectual freedom and discourse while ensuring a small incentive for the creative author.
Interestingly, with the onslaught of technology and promises of greater opportunity to share and communicate, copyright is now a hindrance to these ideals, serving only the moneyed interests of owners.
Historically, copyright protections were afforded to promote expressive discourse fundamental to a democratic society. Today, the very notion of intellectual property serves to commoditize expressive ideas, rather than fostering their dissemination. Whereas initially the provision of an economic benefit was secondary to the promotion of original works, modern copyright inverts this ideal in a continuing effort to establish a marketplace for ideas.
In doing so, modern-day copyright holders focus solely on financial gain to he detriment of the true purpose of copyright.
This trend, from free to fee, is emblematic of a more ominous development in the Internet arena. Bill Taylor, one of Fast Company's founding editors, calls it "the counterrevolution": mature companies in mature categories striking back at Silicon Valley technology and the pricing-power collapse that it implies. They are doing so in Washington, DC and in state capitols, where the technology crowd is weakest and most clueless. Their efforts are meeting with considerable success.
Yet the handwringing over the integrity of a written work, reminiscent of the blaring culture wars of the 1980's and 1990's, feels strangely anachronistic. These days, with the click of a mouse, the control of intellectual property —what used to be called art — passes from creator to user, to reshape according to whim or worry. Photographs, movies, music, literature, even details of history and biography, are all ripe for endless remix.
It's not even that the communications revolution has been derailed by inept or self-aggrandizing behavior by incumbent telephone companies and their government regulators. Something more fundamental is at work. The situation has been shaped by a paradox inherent in the very nature of the new technology: The best network is the hardest one to make money running. This is the Paradox of the Best Network. It lies beneath the sudden stoppage of infrastructure innovation and growth in 2001. It provokes incumbent companies to mass lawyers and lobbyists to thwart the development of a competitive communications market. It causes investment capitalists to drive their stakes into firmer economic ground far away from telecommunications.
It's not even that the communications revolution has been derailed by inept or self-aggrandizing behavior by incumbent telephone companies and their government regulators. Something more fundamental is at work. The situation has been shaped by a paradox inherent in the very nature of the new technology:
The best network is the hardest one to make money running.
This is the Paradox of the Best Network. It lies beneath the sudden stoppage of infrastructure innovation and growth in 2001. It provokes incumbent companies to mass lawyers and lobbyists to thwart the development of a competitive communications market. It causes investment capitalists to drive their stakes into firmer economic ground far away from telecommunications.
It is not just libertarians who are concerned about the restrictions caused by America's latest copyright law. Edward Felten, a professor at Princeton University, argues that the “freedom to tinker”—the right to understand, repair and modify one's own equipment— is crucial to innovation, and as valuable to society as the freedom of speech
Odd - this link works, while this one doesn't
I had the opportunity to play the moderate in the debate for Fair Use and other related "geek issues" over the last couple of weeks. While Free Software Foundation founder Richard Stallman and representatives of New Yorkers for Fair Use hotly protested at a Commerce Department roundtable on Digital Rights Management, I observed, and ultimately wrote a piece that was openly critical of this more combative activism. I recieved a flood of support, and some criticism, including yesterday's rebuttal by RMS himself. I've considered our situation as geeks who want changes, and what follows is decidedly less "moderate" than I've been.
Do the currently disorganized, decentralized forces of bottom-up creativity have a prayer of countering the highly organized, moneyed forces who want to maintain their top-down grip on creativity and information? hat wasn't the specific question on the agenda at the start of a five-day ``Internet Law Program'' at Harvard Law School's Berkman Center for Internet & Society this week. But as some of the top minds in the field lectured and discussed some critical issues with lawyers, educators, government officials and others here, it might as well have been.
Do the currently disorganized, decentralized forces of bottom-up creativity have a prayer of countering the highly organized, moneyed forces who want to maintain their top-down grip on creativity and information?
hat wasn't the specific question on the agenda at the start of a five-day ``Internet Law Program'' at Harvard Law School's Berkman Center for Internet & Society this week. But as some of the top minds in the field lectured and discussed some critical issues with lawyers, educators, government officials and others here, it might as well have been.
Free content, by itself, is not at all that unusual. Broadcast television is "free"--at least to the viewer--courtesy of ad-supported subsidies, as are radio, many concerts and sporting events. But even those services commanding a fee today should become free tomorrow as the economics of music distribution take radical new shape. To understand how, we would do well to look at a very different industry, but one with surprising parallels to music: 19th-century fuel delivery. In the late 1800s, when a tenant sought to warm a cold apartment, she had to buy her own coal from passing coal wagons and then haul it in coal buckets up to her fourth-floor kitchen. This apparently straightforward transaction brought with it considerable challenges for wagon drivers. Theft was endemic. Stories abound of coal wagons stripped of half their load by street urchins before a first delivery could be made. Various solutions to improve security were proposed, including various patented coal locks. The ultimate solution, however, proved to be something quite different: a new distribution model that made coal theft irrelevant. It was called central heating.
Free content, by itself, is not at all that unusual. Broadcast television is "free"--at least to the viewer--courtesy of ad-supported subsidies, as are radio, many concerts and sporting events. But even those services commanding a fee today should become free tomorrow as the economics of music distribution take radical new shape.
To understand how, we would do well to look at a very different industry, but one with surprising parallels to music: 19th-century fuel delivery. In the late 1800s, when a tenant sought to warm a cold apartment, she had to buy her own coal from passing coal wagons and then haul it in coal buckets up to her fourth-floor kitchen. This apparently straightforward transaction brought with it considerable challenges for wagon drivers.
Theft was endemic. Stories abound of coal wagons stripped of half their load by street urchins before a first delivery could be made. Various solutions to improve security were proposed, including various patented coal locks. The ultimate solution, however, proved to be something quite different: a new distribution model that made coal theft irrelevant. It was called central heating.
So if you believe that people do want to watch whatever they want whenever they want, you need a massively distributed system. Which brings us to "file-served television" and that TiVo board meeting. Having a PVR's really big hard disk in many living rooms creates a massively distributed system: Instead of relatively few hard disks owned by the cable operators, you have hundreds of thousands of hard disks owned by everybody. And thus the space to store a million hours of video content. The problem is that movie companies and television companies aren't thrilled to have their valuable stuff sitting on hard disks in your living room. They think they might lose control over how their intellectual property is sold and how they make money. John Hendricks knows all about this, given that Discovery Communications depends on people paying a premium for content like When Dinosaurs Roamed America. He doesn't have an answer to the payment problem, but he's confident enough that one will emerge to propose this seemingly risky plan.
So if you believe that people do want to watch whatever they want whenever they want, you need a massively distributed system. Which brings us to "file-served television" and that TiVo board meeting. Having a PVR's really big hard disk in many living rooms creates a massively distributed system: Instead of relatively few hard disks owned by the cable operators, you have hundreds of thousands of hard disks owned by everybody. And thus the space to store a million hours of video content.
The problem is that movie companies and television companies aren't thrilled to have their valuable stuff sitting on hard disks in your living room. They think they might lose control over how their intellectual property is sold and how they make money. John Hendricks knows all about this, given that Discovery Communications depends on people paying a premium for content like When Dinosaurs Roamed America. He doesn't have an answer to the payment problem, but he's confident enough that one will emerge to propose this seemingly risky plan.
It took a series of smart decisions to create the Internet as an open network where innovation could thrive, as I noted in this space a week ago. Now let's look at some upcoming decisions that will shape communications for the next 50 years -- and ponder the consequences for openness and innovation if we make the wrong choices this time. Based on current trends, unfortunately, the future looks difficult. The forces of central control seem to be in charge at the moment. Powerful interests, caring little for your rights and needs, are dominating the debate. Consider three crucial issues:
It took a series of smart decisions to create the Internet as an open network where innovation could thrive, as I noted in this space a week ago. Now let's look at some upcoming decisions that will shape communications for the next 50 years -- and ponder the consequences for openness and innovation if we make the wrong choices this time.
Based on current trends, unfortunately, the future looks difficult. The forces of central control seem to be in charge at the moment. Powerful interests, caring little for your rights and needs, are dominating the debate. Consider three crucial issues:
Like a great songwriter, Kan drove his point home with rhythm and repetition. "The end-to-end part of the end-to-end encryption idea is misleading. Since humans don't have decryption systems built into their anatomy, information must be deciphered before we experience it. And that is the failing. The only way to make music that cannot be copied is to make music that cannot be heard. The only way to make movies that cannot be copied is to make movies that cannot be viewed." And he didn't shrink from a prophetic plea: "The current crop of technologies should be encouraged and adopted, not restricted or abolished, lest lawmakers and industry leaders wish to bring forth truly intransigent technologies."
Like a great songwriter, Kan drove his point home with rhythm and repetition. "The end-to-end part of the end-to-end encryption idea is misleading. Since humans don't have decryption systems built into their anatomy, information must be deciphered before we experience it. And that is the failing. The only way to make music that cannot be copied is to make music that cannot be heard. The only way to make movies that cannot be copied is to make movies that cannot be viewed."
And he didn't shrink from a prophetic plea: "The current crop of technologies should be encouraged and adopted, not restricted or abolished, lest lawmakers and industry leaders wish to bring forth truly intransigent technologies."
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