The Wrap Session - 2003 July 4 [5:35 pm]
(entry last updated: 2003-07-04 18:38:18)
Charlie will facilitate; the group will respond
Charlie: Can we think about this week in self-reflective terms in the hopes that we can crystallize a question. It’s been an interesting week; I started out to the left of Terry, and I have ended it as an RIAA helper. So I have a question for Terry: The tension that I found myself in has to do with this position withrespect to digital music and I found myself particularly faced with this tension as I considered Terry’s proposal. Would we like to see a digital music world in which people buy their music through iTunes and like delivery services? If we’re not going to displace the copyright system, it’s looking like iTunes is the direction music distribution will take. Would Terry say no? - because his system is better. Or, if yes - will an iTune-like model thrive for as long as free music is available? The split between free and for-pay exists; how will the business model evolve in the face of this split. A balance? And, if so, what sort of balance and how will it be maintained?
Is the fight between copyright and the Net going to lead to the death of one or the other? And can we risk the crash that will come, whoever crashes?
Terry: A brief response. This book I’m writing has two parts - how we got to the problem; and then how we get out. I have three possible routes out, all of which are better than where we are now, while the one we saw in class is my most extreme set of changes. So spoofing and other technological tricks can lead to a host of iTunes variants. The bottom line would be a lot better than we have now, but it would have three disadvantages - 1) you would retain the current music industry structure/concentration of the industry; 2) it preserves the distortions that emerge with pricing above marginal cost - a deadweight loss to society; 3) the iTunes marketing systems is likely to generate some sort of constraints upon the product - usability, copying. It would fail to fully realize the opportunity of the internet.
Now, you might think it’s a nice picture, but the problems in the interim means that the legislative reactions will limit the internet as a whole. But, I believe that there are win-wins in this area that will preserve the structures of the internet that we wish to preserve.
Terry, got a question to pose to one of the others? Terry: Here’s a question that puzzles me - a zoned internet or an unzoned internet. Should we promote/acquiese to it, or oppose it?
Z: It’s a question to me too - zoning seems antithetical to the net, but the jurisdiction/constitutional issues suggest that governments ought to be able to exert the controls that we associate with governments and their instruments. Zoning breaks the libertarian gotcha of the internet; for myself, since most of the internet is speech, I think it’s better to have more unfettered speech than not.
It is a hard question, leading to my question to Larry: what’s the right political process through with we should make the decisions about the sort of internet that we want? You’ve tried a bunch of things, up to a constitutional convention for the internet - what should we be using to effect change.
Larry: That’s a great question. The thing that’s surprised me in the last year is the extent to which we have come to realize that all significant politics are things that are broadcast - w/o CBS or the NYTimes, it didn’t really happen/isn’t really valid.
The blog space seems to have inverted that notion; the notion of a centralized space within which things happen politically is just a bad idea - it need to be distributed and happening at the individual level - exposure to the responsibility of making good and bad arguments, and responding in this space. A conversation from the bottom up on these perspectives, increasing the appreciation of the implications of these issues and to see an invigorated process in the political arena.
Larry’s question: Someone ask Yochai a question.
Q: Europe is grappling with the question of copyright and databases. Could you comment on database production under copyright?
Yochai: Mid-1990s the EU creates IP in raw data - 5 years earlier, the Supreme Court says facts cannot be protected by copyright. Since then, the database industry has petitioned Congress repeatedly for this same right. The basic economics of database protection are similar to those of copyright; the costs to scientific research would be particularly large - a strong reason to resist. The reality of the strong database market in the US in the face of the EU decision suggests that there isn’t a strong economic advantage as the EU thought when they offered the protection - the advantage has not resulted in a change in the position of the EU industry in databases
I mentioned it here as one of the many components of the enclosure movement in information. The fallacy that stronger property rights is needed in this area is gaining increasing momentum in the political process, and this is one instance among many in which there is hope - it continues to fail in the US. moreover, it’s a possible example of why the enclosure movement is an error.
Q: One thing that hasn’t really been addressed but is really a concern has been the fact that we are forcing groups to blatantly ignore the law - and we are forcing them into becoming criminals, rather than achieving interdiction and eroding real belief in the law - a culture of lawlessness. Comments?
Larry: There are many contexts in which the Prohibition mentality leads to people who routinely break the law. Yet we rarely account for the consequences of this sort of lawless culture. I would say that this is what Fred was talking about when he spoke of the collateral damage of this policies.
This view leads to a need for a stronger consideration of the things these laws are actually accomplishing, rather than what they are claimed to achieve, and to ask ourselves if the consequences are worth the aims?
Charlie: Teaching the law is pretty hard when everyone in your class is a lawbreaker, especially when you are trying to instill the ethics underlying as well as the appreciation of the law.
Terry: An anecdote - in the summer of 2000, when Napster had been declared illegal although not yet shut down. I gave a talk in Brazil to a set of lawyers and judges, on music. I begin to describe the system - how many people here have used Napster? and 50% raised their hands. Testament to the speed of deployment and the prevalence in a room full of judges and lawyers
At the time the Betamax case was contested, two Supreme Court justices owned VCRs
Q: For Yochai, can you speak to the political effect of the internet - how the internet contributes to the regional alliances; how do you relate your cuture democracy to political mobilization? Particularly for poor neighborhoods?
Yochai: There are three questions in your first question. The first is the digital divide question; the question of when the necessary precondition for capturing any of the benefits of the internet in political space requires capital expenditure to provide access, does this exclude the poor. Second, does decentralized internetworking provide opportunities for political mobilization across geography - an easy question, yes - the marches against the Iraq war/smartmobs/etc. So, the first question returns, into giving access to this instrument.
The digital divide means, particularly for developing economies, that with new instruments it should be possible to overcome this barrier.
The third problem is the extent to which the internet fragments local communities in favor of others, in other geographic contexts (I think I’m off track here).
Charlie: Here’s something different - what were your academic interests that led you into this area?
Jonathan: It was the internet that brought me into the law. At age 12, responsible for moderating a forum at Compuserve (TI-994a Forum) and having so much fun, exchanging ideas, etc. that I realized that how these communities justly governed themselves let me to the law
Larry: Julian Dibbell’s The Rape in Cyberspace - the power of words to create damage - a place where people don’t really understand their politics. Teaching in this area meant that people had to think rather than parrot what they were suypposed to say
Yochai: Market structures and freedom were my concern; I had been looking in the past, and I discovered that it was actually going on now in cyberspace
Terry: Property rights have been my interest; the subject that implicated power; I have been teaching it for 19 years. Then gradually, the impulse to follow power led me to IP (for the last 10 years) and the internet became the hot topic in internet. Less than Charlie, Jonathan and probably Larry, this is really not my zone - I do IP.
Charlie: I took a course on the Univac in 1958; then not much until Jonathan turned up in a class of mine, and I had a grant to buy Mac Quadras which were then internetworked for a class project. The use of the internet as a teaching context.
Z: Two groups - one group generally asks is the Internet going to be a US centric space;
Charlie: Over here I’ve got some - Who’s going to take your ideas and run with them/ Is it possible to govern the internet? Is the US going to run the internet?
Larry: The fact it that we are already neing governed - the question is whether we are going to take responsible/reflective consideration of the nature of this governence.
Q: Is there a possiblity of a global internet law?
Larry: it’s possible, we may find some common principles, but there are real distinctions among locations that mean we will never see a true global law
Z: I worry that the reason so much of the Internet was a success because the key decisions took place in the back rooms in a different context. As it becomes a public game, the true amateurs will be driven out (as in those who do it for the love of it), leaving us in a muddle of competing and disruptive interests.
Larry: Would you rather developing countries used free software or pirated MS software? Of course, freedom means using free, while tying to network effects suggests that Microsoft will want you to pirate (although they can’t acknowledge this publicly)
Yochai: What are the politics of this set of movements? Terry, your work clearly looks progressive - economic based directives toward freedom; Yochai and Larry vacillate into and out of libertarian perspectives.
My own perspective is that I am a pragmatist. Given the historical facts, the law, the technology, what can be woven together to find a way to a certain moral vision; the political methods, however, are not so sharply defined in this area. It’s a context specific set of operational mechanics - whatever works
Terry: This is a crucial theme, and I have a set of related questions here. What is the role of the state in this? I agree with Yochai that pragmatism is what is necessary.
“The market assigns value to IP objects. How does Terry’s mechanism accomodate this equity issue?” The narrow answer is that the mechanism is based on use, so it works on popularity.
There is an analytical error here, too. Copyright system is a massive intervention of government power into the way that people would otherwise behave. This means that the market is grossly manipulated by the state - it is not a natural instrument. So it’s not a choice between non-state natural markets and a bureaucracy - both regimes are government interventions.
Larry: A smaller question - your regime is like the current regime - payment on the number of times something is consumed. But isn’t it odd that all songs cost 99 cents; aren’t the Beatles worth more than Zittrain’s - what about setting up this sort of market?
Terry: All these markets are imperfect in that respect
Larry: Why wouldn’t you do it if you could avoid the transactions costs?
Terry: It appears that this is unneccessary today - already the current industry could accomplish this sort of thing, meaning that there is no reason to do this - temporal price discriminate is not the same as discrimination among different products.
Elizabeth: I’ve been buying new and used CDs on eBay; which would seem to yield this sort of market.
Terry: I don’t know much about this, but I would imagine that there is another economic factor in play here - scarcity. That generator of inequality would have an effect. It would be interesting to examine the behavior in this market over time.
Charlie: A question - Could the iTunes model be used to bring forward out of print works? My answer would be that this might be the basis for a two tiered market - where out of print works appear in the free nets, and the current material appears in the for pay market.
Larry: Let’s try compulsory licenses - suppose there is a compulsory rate for out of print work. It might generate a couple of different things - a market in recordings (like the Deadhead tapes) as well as a set of incentives to lead to rereleases in the face of demand
Z: Reflect upon the academic enterprize in which you are working - is it really the case that the internet is different? And I note that there is a lot of advocacy in this presentation. Will internet law be here in the future?
Larry: in the 1940s there were two farmers who were near an air force base whose chickens kept dying of startlement when the planes flew over. In order to try to deal with this, they sought to bring suit using the claim of trespass. Justice Douglas, in the Supreme Court, wipes this right out in a single paragraph - “common sense revolts” at this idea of ownership
What attracts me is that the adjustment to new technologies in this space is being queered by the efforts of strong interests - a lind of land grab. It’s necessary to point out that this is going on - so that a decision can be more sensibly be made in the political sphere.
Z: So is that why your life is an Oliver Stone conspiracy movie?
Charlie: I believe that internet law is a real thing - there are many things going on here that are all prevasive, and the integrative nature of this arena means that there is real changes that have to be considered carefully and in the face of real potential novelty
Z: For now - it may all be settled in 15 years
Yochai: I’m not sure that’s an important question. When asked what I do, I give a generic meta description that I believe will always remain a problem - the internet is a context within which we work now.
Terry: Thanks to Robyn and Larry for everything. This is a collaborative program that has evolved over the last 5 incarnations of the program - but the degree of change between the last one and this one is a very large one, and Larry is responsible for that transition - a reflection of his perspective and structure that he sees. Thanks, again!