Google.com was registered as a domain in 1997. If you were 6 years old in 1997 then you will be 21 now, you might have your own children, a job and a mortgage. The world you have grown up in is very different to the one that I grew up in.
There are lots of reasons for these differences but the obvious is one is computation and the unceasing charge of western society towards ubiquitous computing. We have got to the point where we must concede that computers and computing are the ephemeral infrastructure of today’s society, an, unfortunately, invisible layer underneath everything.
Everything? Well pretty much. And if not quite so today, the fact is that pretty soon nearly 100% of our essential interactions will be governed and controlled via computers.
The recent US elections were computerised. On one hand this sounds wonderful (easy to use, quick to count), but on the other hand nearly 100% of the population have no knowledge base that could allow them to understand the mechanics and hence, the veracity of the count. The US elections have become an article of faith. People no longer count ballots, they program computers. If you suspected that there was election fraud, and lots of people do (always have, of course, computers or not), you’d have to be a coding expert to even start the right dialogue. Most of us are not coding experts and so, whereas your average citizen could, at least, understand the corruption of a Huey P Long or Tammany Hall the same is not true of today’s institutions.
Now If you were 6 when Google was launched you are what marketers call a digital native. Like much of what goes on in marketing it is a subtly misdirecting phrase. It gives comfort to those of us born before the execrable line in the sand that is Google. It implies a world where our instincts are still dominant, where our experience is the valuable hoard of wise gold that will steer us through the challenges of a changing world.
“You are a digital native, I am of the world, the whole world, you are only digital.”
Like all subtly misdirecting marketing phrases it also harbours some stone cold truths. It delineates two different groups of humans. It tells us what is different about them. One group understands naturally. The other does not. It’s a brutal phrase if truth be known. It shouldn’t be a source of comfort for those of us too old to lay claim to the name.
William Gibson told us that the future is here already, just not distributed equally. I’ve always taken that statement at face value and unquestioningly assumed that the inequality implied was geographic. New York versus Bangladesh, for example.
At the same time I have, of course, always realised the truth of the difference between the generations in terms of technology adoption.
So in reality we have both a spatial inequality and a generational inequality in the distribution of the future, and those inequalities overlap. Whose world is the real world? Or, to borrow Gibson’s terminology, whose future is the present?
I’d argue that it’s the one belonging to the natives. Those that understand naturally are always at an advantage. In this case the present, the world, is their present (future), born of their technology and beholden to its invisible dominance.
And as I live in that same world (even if my experience of it is different) I should acknowledge a second truth, a truth that also flows from this juxtaposition between space and generations, which is that there is no offline anymore. Not one tiny bit. Everything is digital. Or to be more Zen, everything is.
When I started writing this I had structured my thoughts with the guiding concept, ‘the end of offline’, which I have since discarded because it implies a handover, a change of who holds the reins.
It’s much more than that, it’s not just a change in who holds the reins but also a change in what the reins are, and more obliquely a change in awareness of what the reins are.
It’s almost always been the case that wisdom is delivered to society by those who have lived and have built experience through living. It’s no accident that the classic imagery of the wise, is also the imagery of the old. Thus the impetuous nature of youth, the energy and vigour of youth, the experimentation and risk taking of youth is tempered by the wisdom of age. Youth has always been the interloper, a successful interloper of course, youth almost always gets old after all.
In today’s world, those we have named digital natives are in fact just natives. This world is theirs, and it’s neither online or offline, it just is. They see no divide, because there is no divide.
However, if the digital natives, are in fact just natives then it’s the rest of us who are the interlopers.
I can’t begin to tell you how disgusted this makes me feel.
I don’t pirate, I really don’t, as crazy as that seems. Furthermore from informal surveys of my work colleagues I also know that I am massively in the minority. I still buy CD’s, even my legal, free NIN download sits as a lonely folder on my desktop, never listened to. I don’t own an MP3 player and haven’t loaded any music onto my smartphone.
Anyone who has read this blog will understand, however, that I have fairly strong views on the conflict between the existing incumbent content industries approach to piracy and the reality of the new marketplace. The supply demand relationship has changed and unless we hamstring computing and computers, on a ubiquitous basis (which is such a lunatic idea I actually have faith that we will be able to head that one off at the pass) the old business models are dead.
Today, for the first time ever I tried to go to the Pirate Bay. It was in response to this post on Reddit.
The makers of the movie also contribute to the Reddit thread, their views are worth reading, please do.
I was met with the image at the top of this post.
I actually feel as if I need to take a shower it makes me feel so grubby. It’s as if I have been transported to some strange country that has no relation to the great nation I believed I belonged to. A nation that once defended the common man against the march of the fascist and the immoral. No longer.
I knew that this blocking had occurred as I, clearly, keep abreast of developments in this space. That still didn’t prepare me for actually finding censored access in reality.
So, here we are modern Britain. In order to protect the defunct business models of a dinosaur industry we have lost the rights that many have died to protect, to free speech and free association.
Here is the rub. I had no desire to download that movie. I have still got 23 DVD’s still in plastic wrappers, stacked up against my lounge wall (although that will be 22 later tonight after I have watched the Senna documentary), more than enough AV entertainment to keep me happy probably for the rest of this year.
Anyone who does want to download the movie, however, still can and still will. The thread that followed, on Reddit, had many other links where that could be achieved without any need for technical expertise.
I, however, wanted to see the maker of that movie interacting with the Pirate Bay denizens. I wanted to see if he would be received politely, or whether they would be angry and offensive. I wanted to know if they would actually go and buy the movie as a result of his posting there.
But I’m not allowed to. And that‘s a disgrace.
Then they came for me–and there was no one left to speak for me – Martin Niemoller
Am I being a little dramatic using the Niemoller quote in this context? For sure. Nonetheless, It still makes a good point. It’s time to take an interest in these issues regardless of whether or not you want to pirate content.
I am not a pirate, but I’m not an idiot either.
I’ve spent a little time recently buried in two different views about where we might be as an economy in the next 10 years or so. Both views are necessarily lax with regards to predicting exact timeframes, hence ‘or so’, but both are also mutually supportive, one providing the higher order framework that can enable the more logistic expression of the other (Doc Searl’s Intention economy).
So, to start with the higher order paradigm. Professor Carlota Perez claims to know how we can emerge from recession into a golden age of global prosperity. Which is nice.
Heady stuff, certainly. That’s some claim isn’t it. Indeed, from where I’ve been sitting for the last 6 years or so, I’ve not had sight of a future deserving of such grand declaration. Not even in my more optimistic moments. I sometimes feel as though we have been bombarded with a wall of global negativity, with very little seemingly, to evidence a return to collaborative and communal times, so it’s nice to know that there is an alternative out there to the doom and gloom.
Even the early signal and promise of the internet had become targeted and entangled by the old incumbent models, to the degree that I had begun to doubt that we might actually arrive at anything other than an illusion dressed up as a pretty, but nonetheless still walled, garden.
Right. A golden age. I have been reading an economist, the aforementioned Carlota Perez, courtesy of Confused in Calcutta (JP Rangaswami, chief scientist at salesforce.com whom I must once again identify as one of the most illuminating bloggers I have ever read).
Her ideas are bold and, so far as I can tell, robust. There is a part of me, a cynical part to be sure, that is waiting to see what i’ve missed, because it seems to me that she has nailed it.
The core idea is simple, which is that there are cycles within capitalism of technological innovation that last between 40 and 60 years. These cycles consist of 2 phases, an installation phase and a deployment phase, and are marked at the crossover point by a financial crisis, a bubble bursting. We are at that point now in the surge which is installing information technology as the standard, the 5th such cycle (started in 1971). We are yet, however, to emerge from recession.
Professor Perez has a lot to say very specifically about how we can get out of the recession and is quite clear as to what is required. The 2 different phases, installation and deployment, demarcate the transfer in roles between financial capital and production capital. Under the current free market ideology financial capital is ascendant, which is great for making things happen quickly and has enabled the maturity and installation of the information technology which will drive the next phase.
The next phase, the deployment phase, led by production capital which plays over the long haul, needs a significant expansion of markets and a wider deployment of the new technologies, to do exactly that (expand markets). It is, to oversimplify it, a time when it is wiser to move from monopoly to oligopoly as a dominant form, and from private ascendancy to state ascendancy. Think of the post war road building schemes in the US, which helped suburbanisation and the rise in mass markets. That was only possible via government intervention.
I’m not going to say much more, because she can say it much better herself. I can not suggest more strongly that it is worth looking at her ideas.
Hopefully you will look into what she is saying in more detail. The following links are to slideshare presentations, which I have found to be a surprisingly effective way to understand her ideas.
The talks she gives are somewhat enticingly named don’t you think? This is the first cohesive view I’ve seen about what we should be doing now and where it can lead.
History shows us, again and again, that frontiers are lawless places, but that as they get richer and more settled, they join in the rule of law. American publishing, now the largest publishing industry in the world, began with piracy – Tim O’Reilly
The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries – US Constitution, the ‘copyright clause’
Watcha gonna do about it? Watcha gonna do? – Sex Pistols
Well. What should we do about it? I’ve been spending a lot of time reading around this subject, largely because I had to write this post, but also trying to sift the various opinions, to identify the axis that are in play. One of the bits I spent some time with is this talk by Professor Paul Heald of the University of Illinois. It’s just over an hour long.
He is presenting his work and trying to establish some reliable data that could inform the debate surrounding the length of a copyright, and the value of applying term increases retrospectively. It’s not an easy talk to watch, because it’s an interactive seminar and he is a generous speaker, sharing a lot of time with his audience, but very interesting if you have the time.
The question being addressed is “Do bad things happen when Works fall into the public domain?” , which, on the face of it is an odd question. He’s been looking at what happens when copyrights run out, and enter the public domain.
So, here we have the academic establishment looking at issues relevant to copyright extensions, but extensions that have nothing to do whatsoever with the incentive to produce new works. Why? After all providing new protection to old works, has no impact on incentivising new works.
Well it’s because congress and the rights holders, have been very seriously advancing arguments to justify retrospectively extending copyright terms. Professor Heald is preparing real data to inform these debates.
There are 3 arguments:
- Fear of under exploitation – without an owner, there will be no incentive to use a work
- Fear of over exploitation – without an owner, a work will be used so much that it will be diluted and hence lose value
- Fear of debasement – porno Disney
This is all serious stuff. Why is it a debate happening, in of all places, America?
It’s because of the influence of European, and particularly French, history on the drafting of the key international treaty appertaining to copyright, the Berne Convention.
So, whereas the American model was, originally, built on the assertions of the US constitution quoted at the top of this post … “To promote the Progress of Science and useful Arts” … the European model was influenced by the French “rights of the author”, which encompassed both proprietary (much like US and UK copyrights) and moral rights.
Moral rights, granted to the author for their lifetime, protect against such issues as debasement and the integrity of the works. Hence the argument that Professor Heald is a party to, which certainly adds no value to the debate about encouraging innovation.
The Berne convention, of 1886 no less, eventually won the entire debate. Both the US and the UK finally signed (in the case of the US) and actually enacted (both the US and the UK) the requirements of the convention which now characterise our global copyright structures, but not until 1988. There are now 165 signatories in all, all of whom have agreed to respect the copyright law of other signatories as if it were their own, and have enacted legislation that invokes copyright at the moment of creation, there must be no obligation to register a copyright. It is immediate and automatic. The convention also sets certain minimum limits for copyrights. The minimum for most works is for 50 years after the death of the author, but countries are free to make it longer if they so wish.
Today, our law protects both proprietary and moral rights.
But even though we now have 2 sets of rights to protect, we still only have one weapon to use, the economic incentive of temporary monopolies created by copyright law.
Whichever way we look at it, it all comes down to the business model. The enforcement levers are chiefly economic, therefore the role of the appropriate law, in this regard, should be to provide the necessary protections of the rule of law, to viable and legitimate business models. The business model, whatever that ends up being, must inform the law.
So here we have a classic chicken and egg situation, which will last until someone or something breaks the legislative stalemate.
What do I expect of a business model that is protected by the rule of law?
Well, mechanically it needs to be viable, does it work, can it generate revenue and profit, but it also needs to be legitimate, does it pass muster on society’s ethical standards, particularly, in this day and age, with freedom of speech rights and civil liberties?
This whole series of posts has argued that we are facing a decision between the needs of what used to be a legitimate business model, and the needs of what is most likely to generate the new business model. So it should come as no surprise to learn that I favour making laws to support the requirements of new technology over big content. A business model that requires laws that infringe on hard won civil liberties is no business model for me.
So, with the role that the business model must play, in mind, I am going to look at the various levers we can pull in terms of reforming IP copyright law, starting from today’s base point.
There are 2 big levers we can pull and a whole bunch of silly ideas (that have been implemented to buttress the incumbent business model) that need to be repealed. The two big levers are term and registration, the repeals cover such things as the law against cracking DRM, adding protections against DMCA takedown abuse and punitive damages for infringement.
So, term. How long should a copyright last for?
Let’s tackle the hereditary issue first. The prevailing wisdom is that the financial incentive provided by these legal protections is very specifically to encourage the production of further works, not just by the specific creator in question, but to provide incentive to encourage new entrants to these fields also.
In neither scenario described above, the original creator or a new entrant to the market, does the incentive need to last beyond their deaths. Once they are dead the law cannot incentivise them to produce more works. They are dead, and can no longer produce anything.
Ok, but, what about a young man, say 29, a genius composer, with a young dependant family, who tragically dies age 31. Should his dependants be deprived of the vehicles, that let’s face it, were otherwise going to be paying for their life costs, possibly for their entire lives?
Is the economic value of his legacy like a salary? It is certainly the mechanic via which artists earn their livings. Should they be able to earn money 30 years after they sweated over their craft, when you can’t do the same with the sweat you expend over the craft of your salaried job? Should their dependants be paid this money if they die? That certainly wouldn’t happen if you were salaried, unless you had paid for life cover.
Or on the other hand, isn’t it just like a business? A going concern that can be passed on to your children?
OK. Is an artist’s income like a salary? In some ways it is, in other it isn’t. It is clearly the mechanic that an artist earns their income via, much like a salary. But there are 2 key differences. The income level is variable and it arrives over a longer timescale. Your salary on the other hand is fixed, and arrives every month.
Is an artist’s work equivalent to a business then? Well, no I don’t think it is. The business analogy fails because a business worth inheriting is a going concern. An inherited business brings obligations that a monthly royalty cheque does not.
I think we should look for ways to make these issues irrelevant. I can understand the envy of the salaried, but I can’t see justice in the thought of a corporation profiting from a public domain work, while the creator’s grieving partner and child get nothing.
A fixed term copyright solves these problems. The copyright is inheritable if the owner expires within the fixed term, but cannot extend beyond the original term, regardless of who holds it.
We also, via the fixed term, deliver a mechanism that gives a reasonable opportunity to generate revenue. If a rights holder fails to exploit such an opportunity then I see no obligation on the part of the law to provide additional opportunity.
There are other things we could do. How about splitting that fixed term with protections that lessen over time? Maybe the first 50% of the term is full copyright protection, but the remaining 50% removes some of the rights, maybe enabling the charity sector to use the works as they see fit, commercially or otherwise (obviously there would need to be intelligent oversight here).
Maybe we could introduce a fee that increases over time, making it uneconomic to renew a copyright unless it had a substantial enough value to justify the fee. I think that came from Lawrence Lessig originally. Similarly we could consider a straightforward renewable term, matched with an obligation for application?
That rather deftly, introduces us to the other significant policy lever, registration.
Indeed those last 2 thoughts, both, have strayed into the territory of registration. To administer either a fee or a renewing mechanic, we would need both a central controlling body (they exist already) and an obligation to register, at least at some point, the copyright in order for it to be enforceable.
The Berne convention is clear and intransigent in its opposition to any kind of registration. To some degree I agree. In today’s landscape introducing an obligation to apply for copyright (much like patents) would be a significant advantage for commercial organisations over individuals. I do not think that that is conducive to generating efficiency in today’s communications landscape.
Nonetheless, what could we do with registration?
Well, as mentioned above we could introduce it firstly, but secondly we could add some simple variations.
We could stagger it via multiple renewable terms, maybe ever increasing in cost, maybe ever decreasing in length.
My favourite idea would be to enforce a short period of automatic and immediate copyright, maybe 2 or 3 years with an obligation for registration before the end of that term, in order to receive the rights of the full copyright. The automatic term should be set so that an individual has plenty of time to apply for protection is they so wish.
Now, the more attentive will have noticed that I have not put a figure on how long I think the term should be. Indeed I quite sneakily moved over to discussing registration without giving a number, at all. There is a reason for that, which is that I really don’t know what the answer is. Yet.
I think it is something that should be deduced via some form of structured analytic approach. The work done by Paul Heald, that I linked to earlier, shows that economists can and do structure studies to look at these issues. It is this kind of work that is needed to inform the debate.
For me the goal is to identify the optimum term that encourages innovation. I don’t have a study design to do this, but I’d love to see a series of data plots showing average revenue generated, on a 6 monthly basis over 50 years (more where possible), for a series of different types of works covering music, writing, art and software. And I’d like to see that data for copyrights held by individuals versus companies.
We would also need to find a sensible proxy for measuring innovation, or progress. This is not straightforward and the main reason why I am not suggesting a study design.
Either way, my point is clear. It shouldn’t be too hard to introduce some useful, independent, analysis to answer these questions. This is how we should set copyright terms.
My instincts suggest that they should be much shorter than they are today, but I’d rather see a proper study, to be honest, than add more opinion to a debate that is in serious need of a few factual anchors.
Ok. What about the various pieces of bad legislation mentioned earlier. There are 4 things (at least) I think should be changed.
1. DMCA takedowns. The current system is philosophically horrible. Guilt is assumed and innocence has to be demonstrated. There is no due process. It needs to be demolished. However, assuming that compromise is a more likely outcome we should strive for the introduction of fair compensation for legitimate content owners who are negatively impacted by incorrect takedown notices. This would introduce a much needed measure of justice into this tawdry practice.
2. DRM is simply an affront to common sense. It is only enforceable by making the publication of the encryption key illegal.
DRM has to have a legal component. Basic cryptographic principals state that you can keep something secret by having secret content or having a secret key. In order to work you need one or the other. But DRM requires that you give the user both the content and the key. Otherwise the user wouldn’t be able to decode the content to use it. The only way to make DRM work is to make it illegal to expose the key – slowpoke, Ars Technica poster
Current law makes it illegal for you to crack the DRM placed on a product that you own, even if you still use the product in a completely legitimate way.
3. Punitive damages in legal redress for copyright infringement. Simply needs to stop.
4. Expansion of trademark and trade dress usage. These are dangerous tools for corporations to be leaning towards, because they are perpetual protections. We must guard against their unreasonable use to restrict fair technical competition.
Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. Trade dress is a form of intellectual property.
Trade dress, and trademarks are the basis for much of the Apple v Samsung IP fight.
The issue here isn’t whether Apple has a good case in current law, or not. The problem is that a case that has significant impact on the distribution of value via technology innovation could be decided by ‘4 identically sloping edges’ and a bunch of icons that are little alike. Apple set the standard for high end user expectations via these features, as well as the inherent value of the technology itself, which is why Apple wants to limit their usage. Whereas the claim is understandable it is not in the public interest to support monopoly provision of technology via issues such as visual aestheticism. Certainly when those protections are stronger than the technical protections available, patents.
And therein is the danger of trade dress and trademark expansions. These are perpetual rights. Forever. And ever. It might be understandable that corporations seek these levels of advantage but that does not make it right. There are very real issues of loss at risk if we do not find ways to limit these trends.
Right. That’s most of what I wanted to say. This is a long post about a diverse and detailed topic but I still do not imagine I have come close to representing most of the relevant thoughts, ideas and counter thoughts that are furnishing this global debate.
If I have one principle that I feel is important, that needs to be a guiding principle of whatever solution we arrive at next, however long it takes us to get there. It is this.
Clarity implies simplicity. This is important because issues of copyright now affect us all. We (almost) all own tools that we commonly use to publish copyrightable content, and often republish others’ content over a wide range of new digital platforms. Copyright law is no longer a matter of industrial concern, it is something we could all find ourselves on the wrong side of, all too easily.
Take for example, this last story.
Two photographs. Here, please have a quick look. I provide a link instead of the pictures themselves, sincerely because I do not know if I will be infringing copyright to publish without permission.
I don’t like the ruling, personally, but I can see how he gets there, even though I disagree. The point, however, is how complex it is, when it really shouldn’t be. Clearly there are similarities in those two images, but the second one was taken and structured in such a way, quite deliberately to avoid infringing the first photo’s copyright. The judge took this fact, presented by the defence, and partly used it to establish a derivative link between the two. Anyway have a read, if you can face it. This level of complexity makes the law inaccessible to the common man.
One last point. I have mentioned previously that there is a bloody conflict brewing. I don’t literally mean violence, but I do suggest that this is a conflict of hardened entrenched positions. Defeat will hurt, whoever has the misfortune to be forced to accept it.
Maria Pallante, the US Register of Copyrights, recently said … “Copyright is for the author first and the nation second.”
This post sums up exactly how wrong she is. I will leave you with the sign off (from that post), stating the obvious it may be, but the fact is its highly unlikely Maria Pallante is worried for her job, however much the facts suggest she should be.
The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.
I could understand the usual kneejerk anti-Techdirt trolls lying about this.
But when the person who is supposed to be in charge of copyright doesn’t even know this basic fact, it’s time for her to be fired. – Karl Heinz
So far in this series I have made 3 broad points.
Part 1 explored the thought that it is no longer OK to NOT know how the internet works.
Part 2 examined what we can learn from the containerisation of global trade; standardisation, innovation and legal protection for the essential carrier class.
Part 3 demonstrated how the current issues of copyright enforcement (SOPA, PIPA, ACTA etc) are forcing society into making a choice between the incumbent content industries priorities, and the healthy functioning of the modern information economy.
In this post I intend to look at some of the basic economic principles at play, with regard to modern content businesses, and why I feel the need for significant copyright reform is massively preferable to more stringent and effective copyright enforcement.
So, here’s the thing. The economics of the existing model are fundamentally and utterly broken.
They are broken because they are built on theories (and historic actualities) of scarcity, where today incredibly cheap copying provides abundance instead. And they are broken fundamentally and utterly, because there is no rational relationship between supply and demand when the traded product is in a state of abundance.
Moving from scarcity to abundance is economically seismic, and when worlds collide, things get broken. In this case it’s the content industries incumbent business model that has broken, and it isn’t going to get fixed unless we break computers or limit access to them. Neither of which should be acceptable to society.
Now, we don’t have the abundance much written about in science fiction, at least not yet. However, we are in a situation where the relationship has changed to such a degree that the tenets of selling a scarce product are no longer relevant.
The essential problem is this. In a world where increasing numbers of products are being sold as digital code, instead of physical artefacts, the ability for a general purpose computer to make an unending supply of copies tilts the relationship between supply and demand to favour the consumer and not the producer.
A world where the cost of copying is negligible trending towards zero, is a world with incredibly high supply trending towards infinite.
A world where supply is trending towards infinite is a world that will never see demand outstrip supply. The pressure on price, in a classic model, is ever downwards.
A world that is increasingly designing life vectors dependant on easily available computing, trending to ubiquitous, is a world that cannot afford to restrict access to computing, or to reduce the functionality of computation itself.
It’s not abundance as science fiction would have you believe, but it’s not scarcity either.
Here is the reason why getting this stuff right, is so important, and it’s nothing to do with getting ‘free’ stuff. This is about the on-going ability of humans to continue contributing developing and interacting with our cultural heritage and cultural artefacts.
If we don’t work out an economic model that efficiently distributes financial rewards in such a way as is judicial, and also which provides economic incentive to maintain infrastructure and encourage business innovation, then we will not have any content to consume beyond the inanity of our friends social output. And as essential as social discourse is it is only one part of the human experience, one furthermore that is commonly enriched by cultural creation. If we don’t get this right, there will be no TV to discuss, no music to enthuse about, no writing to make us think.
This is not a ‘no poem’ argument, the thought that people only make content if they will be remunerated. This is an infrastructure argument. Culture today has a new dimension, the GLOBAL masses. And access to the global masses is enabled by the global industrial infrastructure of the internet. Similarly, if we give everyone the ability to create and post, we will want ever more quality control in both creation and curation. Well, these things cost money, and that money has to come from, at least at some point, the end users of products.
Here’s the kicker, not necessarily from all end users, and not necessarily for all products.
Perhaps the most famous fictional account of a society built on abundance is the world of Star Trek. We are all familiar with the replicator that creates anything you need or want, it is, if you will the poster boy of abundance technology. However, there are other important conditions that would need to be met for a society to be deemed one of true abundance.
Alongside the need for replication, you would also need an unending power source and a level of automation (both mechanical and AI) that could efficiently cover all menial tasks. Then there are the issues of social change and status, governance and enforcement, rights and privilege. It’s a lovely idea, but it does bend the brain a little thinking about it. It is, if you like, the very definition of paradigm shift. One of the characteristics of paradigm shift is that it is very difficult nigh impossible, to foresee solutions for the next paradigm’s challenges from the confines of the present one. You can get awfully tied up trying to think your way through this stuff.
Now, fortunately, we clearly aren’t at such a stage. Our situation, how we are going to fund content production, isn’t nearly so difficult, although many would have you believe otherwise.
As an aside it is rather wonderful to point out that in a post abundance society one of the big things that would confer status would be artistic and cultural ability, talent. The talented, the truly talented would be cosseted and lauded, but cajoled for performance in return. The authentic will rule. It is slightly perverse that so much opposition to these required changes comes from some of the most artistically talented members of society.
Anyway that’s not us. We still need to find a way to take money from users and give it to creators. We aren’t going to transform into a post abundance society any time soon, so we are stuck with a simple challenge.
How can we refocus commercial transactions to areas that have natural scarcity?
I say refocus, because there is still substantial revenue being collected under existing schemes. There is no need to throw the baby out with the bathwater.
I’m also making an important distinction between artificial and natural scarcity. Simply making it hard to consume products, in order to restrict unlawful copying eventually degrades the original experience to the point that the law abiding will yearn for untrammelled unfettered access. We need to find points of difference that consumers will value.
- Essential quality – in a truly abundant society the greatest artists and talents will be among those that can garner actual status in the absence of economic reward. We should never lose sight of the fact that it has never been easy to make a living as an artist, or in today’s parlance a content creator. No-one deserves a free lunch just yet. The internet will just make it easier and easier to compare product. Quality will be valuable.
- Access – delivery, interface, technical quality, sociability, speed, ubiquity
- Unique – live performance, interaction, communion (be available), limited edition artefacts
- Computing infrastructure – none of this happens without computers, the internet and a wide array of internet access points or communities and tools. We pay for all of this right now, and happily. If these industries end up being the big winners of this power transition I truly see no reason why they can’t also be the providers of the required industrial infrastructure.
Every single one of these points provides ample space for there to exist differentials in service across the market, and hence for there to be a real element of competition amongst providers.
What should be discarded is limitation of access to the digitised product. It’s the only part of the picture that is currently being attacked by abundance. In short, you have to be comfortable with it being distributed for free, outside of your control. It doesn’t have any economic value in and of itself so let it go as far and wide as quickly and cheaply as possible. Get it into the experience of as many people as possible. Turning it into quasi-advertising may be the only way to recoup value from the digitised product. Much like radio airplay used to be essential for selling music; widespread consumption will become the gateway to generating subsequent and incremental revenues in our new content economy.
As I sit here typing, this all sounds alarmingly straightforward to me, where of course it simply isn’t. There are risks involved, these are new economic spaces and there will be trailblazers and spectacular failures. Humans are a loss averse creature, our essential nature would prefer to maintain the existing, the comfortable, the known, the understood. This transition will be bloody. It is highly unlikely that we will achieve consensus, one party will eventually feel aggrieved and it will take longer than it should. I have no idea how to avoid this.
Still the fact is that the economics of the incumbent content production and distribution models have been dealt a killer blow and they will not recover. That said, I see no reason why the incumbents can’t maintain some position in the new landscape; it is the business models that are gone, after all, not the brands themselves. There is still a role for them. They retain a huge and valuable knowledge base. They are where the talent currently resides. As I have said, talent is only going to be ever more valuable. There is much to be retained from the incumbents.
Call me an optimist, if you like, but I earnestly believe that wherever this all finishes up, and however long it takes we will eventually be in a better place. The seductive call of abundance is just starting to make itself heard in our economic reality, the inevitable disturbance of the necessary transformation aside, this is a wonderful thing isn’t it?
I mentioned in part one of this series that the RIAA and the MPAA had recently changed their tactics in the conflict against illegal file sharing. They had historically targeted the end user, the consumer who was actually getting something for free, which on the face of it seems reasonable. The truth is that this tactic, even, has proved to be controversial with extensive and powerful legal bodies essentially threatening and hounding teenagers and their families, for something that seems trivial in comparison, the copying of songs.
I, personally, do not think that the approach taken by Hollywood et al was sensible or proportionate. They were targeting regular kids, who had shared music, something all kids should be encouraged to do, and without which the music industry, as it stands now, could not have existed.
It is important to make a distinction between people sharing music, with no cash exchanged between them, and someone setting up a website hosting illegally copied files and asking for payment for access or downloads. There are plenty of existing laws to prosecute those that sell what is essentially counterfeit product.
Anyway, as much as I want today’s kids to be able to do what I did when I was their age, and copy music to enable sharing, I have to acknowledge that some of the conditions have changed.
When I was a teenager, my good friends and I all shared a broad taste in music, but there were still clear specialisms. One friend was a particularly intense Bowie fan, another Led Zeppelin and I decided that I would collect every album Queen ever produced. I also bought some Bowie albums and some Zeppelin albums. But I had copies of everything that all 3 of us owned. Getting 3 blank TDK cassettes in my Christmas stocking was a big deal, that was 6 albums I could copy !
6 albums, incidentally that I didn’t have the money to buy, all my spare cash having already been converted into vinyl as soon as it became available. Back then it seemed to me, there was little to no fear emanating from the content industries about spotty teenagers and pirated music on TDK cassettes.
We sort of knew it was illegal, but weren’t 100% sure. Quite frankly the best way to characterise how I felt about the chance of being caught or busted back then is to think of a 5 or 6 year old trying to grapple with the idea of Father Christmas not existing. There is a conflict, but in truth it’s a ludicrous conflict. The evidence – I’ve never seen Santa, or any evidence of supernatural abilities – versus the desire – but he won’t bring me presents if I don’t believe in him – which often resolves as a decision to keep on believing, just in case, for some time after you know it can’t be true.
So, it was with my fears of getting caught recording the top 40 on a Sunday afternoon. I knew it really was illegal, but it was so ludicrous to think that the police would come looking for me that I carried on as if it were legal anyway. And so did everyone else.
The big difference between then and now, of course, is the difference between my faithful TDK 90 minute audio cassette, and today’s ubiquitous computing, every computer a veritable AAA copying machine.
As much as I couldn’t afford to buy all the vinyl I wanted to, I also couldn’t afford to buy as many audio cassettes as I wanted to. That cost simply wasn’t trivial, whereas to today’s computer user the cost of copying a file is negligible. Once you have a computer well, copy one song, copy a thousand…. either way it isn’t going to hurt you financially.
Anyway, I digress. For whatever reason it is fair to say that today’s content industries are now very interested in stopping all this copying. However they have also discovered that going after the actual downloaders themselves doesn’t seem to work.
And so they have changed tack.
The SOPA and PIPA legislation, ACTA too pretty much and all the similar derivatives across the globe are trying to place controls onto the newly emerging essential carrier infrastructure – ISP’s, search providers and content aggregators – to either police the content on their networks, or censor specific sites, designated by ‘big content’ and without due process, under penalty of law.
This is why it has become important to understand how the internet works. We have an explicit conflict between what the rights holders want, and believe that the rule of law should deliver, and what the technical structure of the internet needs to retain functionality.
We can all, without too much cognitive struggle understand the issues pertaining to copyright infringement, file sharing and piracy. Even though many of the written polemics insist on muddying the waters, using incendiary language to confuse the definitions of theft and copyright infringement, I remain fairly convinced that only a cursory review of the legal definitions (the only ones that count in a legal dispute) is required to see the difference.
But, the same cannot be said of the internet itself, and how it works on a fairly deep technical level. The technology is pervasive, complex and highly variable. The internet is a big old thing, and it keeps changing.
So, why will these law changes be so destructive?
The content companies simply want the essential carriers to be given legal responsibility for the content hosted on their platforms, and hence have to face the penalties of non-compliance. The content industries don’t expect the essential carriers to breach the court orders, they expect them to make sure illegal content can’t be accessed, in order to ensure they don’t breach.
Court orders granted under this legislation could make it illegal for payment processors and ad networks to transact with infringing sites, which is not so destructive, but they can also make it illegal for search engines to link to these sites, or for ISP’s to allow access. All of this managed by a process that puts the onus of proof on the accused site, violating the principle of innocent until proven guilty.
So our first objection to these proposals must therefore be that they will violate principles designed to protect free speech, such as due process and innocence before guilt, let alone the potential for censorship by abuse.
Our second objection is more powerful, and is the technical problems and costs that compliance will cause. Rather sadly, I imagine that it will be these problems that lead to eventual sensible reform, not a principled conformity to the concepts of justice.
Even when people understand and accept the issues of principle many will still ask, why isn’t it reasonable to expect Google to make sure it’s links don’t point at copyrighted material? Or why would holding Facebook, or Tumblr, or WordPress responsible for what it hosts break the internet? On the face of it those sound like reasonable questions.
Well, there is a problem, and it’s the cost of policing all that content. Nothing principled really just business. It’s the same situation faced by Malcolm Mclean and his containers (part 2 of this series). When faced with the sheer scale of modern shipping, the cost of effectively managing a shipping line’s risk, if they were liable for the illegality of their cargoes, would be financially ruinous. The positive contribution provided by the container shipping industry, on a global scale is so valuable that we consider it sensible to ensure that it functions well.
One of the ways we do this is to shield it from the costs of policing the entire global freight industry, of policing not itself, but those that use their services. Now let that sink in a bit. Because it’s the crux of it. That’s a huge task. Modern government’s don’t effectively police 100% of global freight, they don’t even try. And that’s because it’s such a huge job and it would just cost too much. Instead they do what they can with the resources they have and some stuff just keeps on being transported illegally, and we all know and accept that even while border agents try to catch what they can.
But this is is exactly what SOPA and PIPA and all the other derivative legislation is asking us to do to today’s essential carrier infrastructure, the content hosts, the search providers the cloud hosts, social media and blogs. They are asking that the costs of policing what the world does online, is born by the industrial infrastructure that carries those communications. It does rather bring to mind the nervous phrase, ‘please don’t shoot the messenger’.
And that would be the end of the internet.
Either the essential carrier infrastructure stops operating, because its business model collapses, which is the nuclear option, if you like, or we revert, globally, to a time when communication was slow and limited. Speed reduced by autonomous and bespoke, checking mechanisms. Publishing too risky without armies of lawyers. Or at least, larger armies of lawyers.
Still, under current legislation rights holders have a reasonable expectation that the rule of law will be upheld and their rights will be enforced. And although they are proposing bad solutions, they are within perfectly reasonable territories to expect their rights to be enforced.
But when enforcing the well-meant intentions of the law looks set to wreak indescribable damage to essential carrier infrastructure you have to consider the other side of the equation. The question of whether the law, as it stands, is still appropriate, is a very sound question. But so far, we seem to only be looking at the law related to enforcement. There is absolutely no reason at all why we can’t reform the law that gives rise to these property rights instead.
We already have a body of law where rights holders have process by which their content can be protected. DMCA take downs are now common currency and Megaupload stands chained and accused, other digital lockers closing in a rush before the policeman comes for them too.
The content industries are not standing powerless. Neither are they suffering financially. Business is pretty good right now actually thank you. cough cough ahem.
So let’s be really clear here. Something has to go. There is a seemingly irreconcilable conflict between 2 authentic and valued mechanisms of society.
The functions of essential infrastructure need to be protected in some way. If modifying IP rights can achieve that we should explore those options too.
The internet is not the first global networked structure built by humans. There is nothing surprising in that statement, although you might be forgiven for thinking so. What is surprising, is that even though we do have relevant experience which we can study, to help us understand how to best proceed with some of the challenges and conflicts arising today, it appears that few people seem to do so. There really are analogue lessons that are relevant to digital situations.
Malcolm Mclean is a man we would all be wise to have a good look at. Known as the father of containerisation, the massive changes he brought to global industry and the way he delivered those changes make him one of the very few people whose experiences and contributions can be considered relevant to the particular conundrum of copyright legislation and modern business models.
Mclean was the man who pioneered the modern shipping container industry, and killed the job prospects of 1000’s of dockers on a global basis.
He started in transport as a trucker, originally a driver with his own truck, then slowly building a fleet of trucks, the Mclean Trucking Company. He was a successful man building the company into a comfortable concern. Nonetheless like everyone else he felt the pressures of the 1930’s and returned to driving work himself during this period.
In 1937, waiting dockside for the best part of a day to get his cargo unloaded he had the idea that would eventually lead to the shipping containers we are all so familiar with today. A simple idea really. A container that could be lifted from a truck, into a ship. As strange as it seems, for something now so common, it would still take 19 years before it came to pass.
Mclean went back to building his trucking company until eventually, in the early 1950’s, he had become the largest trucking group in the south and the 5th largest in America. He owned 1776 trucks and had built 37 terminal facilities along the eastern seaboard.
Driven every kind of rig that’s ever been made
Driven the back roads so I wouldn’t get weighed
Willin’ , Lowell George
As the song reminds us, a matter of great concern for the trucking industry in the 50’s was the imposition of weight limits and newly levied fees, posing particularly grave problems for any trucking business crossing multiple state lines. This was the problem that spurred Mclean into dusting off his thoughts about container boxes. He figured that if he could make the process of exchanging cargo between his trucks and some big ships, easy, then he could simply cut out all the weight restrictions and charges being forced on him by each individual state. He would simply go around them, sailing his cargo from Newark to Texas. The enormous time savings delivered dockside, loading and unloading, coupled with the significantly larger loads, enabled great value. It didn’t matter that the relevant industries weren’t all in say Texas, for example, it was still cheaper to send it down by ship and then move it by truck (over many fewer state lines) from there.
It wasn’t the concept of the containers alone that set Mclean apart. He wasn’t even the first with that, the rail industry had been transporting truck trailers, and the shipping industries had played with shipping some railroad boxes. That idea itself wasn’t new. Building a standardised, patented intermodal system that allowed shipping to be 100% dedicated to transporting containers, that was new. And worth a lot of money.
Mclean bought and equipped a ship and the neccersary dockside facilities and got to it. He had no trouble finding customers as he was quite comfortably offering savings of 25% against the alternatives. His main trouble came from his competitors in the transportation game who weren’t satisfied with his legal business arrangements, it being illegal to operate across 2 or more carriers without ICC approval. Mclean, in response sold his trucking concerns and launched the shipping company that would come to be known as SeaLand.
We have the benefit of hindsight, so we know how successful his concepts turned out to be, but all Mclean had to go on was the conviction of his own thinking. Today 90% of all global freight will have spent time inside one of Mclean’s containers, and there are roughly 18 million of them quite literally scattered all across the globe, all small parts of one standardised global intermodal freight transportation system.
And that there is one of the magic keys to all this – standardisation. The business efficiencies were enabled by the adoption of standardised equipment, the containers themselves and the dockside equipment needed to load and unload them. Mclean had to spend significant time persuading port authorities to redesign facilities to accommodate the new system. Slowly the ports adopting containers started to show a distinct health and resurgence. The industry took notice, and adoption grew.
Perversely, even though containers clearly were the death of the docker as an industrial force, many ports were under greater pressure from land based trucking companies. The port authorities began to see containerisation as a lifeline, not a threat.
Mclean had released his patents, and made them available to use under a royalty free lease given to the International Organisation for Standardisation. I’ll say that again. ROYALTY FREE. Furthermore he was vigilant about standardisation, recognising that the growth of his business and his business sector could only be helped, not hurt, by actively managing and aiding standardisation as a business principle.
These were momentous changes and wrought significant upheaval and change in society. The docking industry was dealt a fatal blow and never recovered. There was considerable human cost. Old traditional ports that resisted the change were over taken by new facilities opened in newly feasible locations. Time savings made it possible to relocate ports, decentralising delivery and devaluing incumbency. The savings were too large, the old model was doomed.
Standardisation wasn’t the only magic ingredient. As well as the time savings the containers increased the security of goods in transit. Previously a certain percentage of spoil and theft was a line in the business plan, Mclean’s sealed containers stopped this problem. Which also lead to cheaper insurance premiums.
However, the most significant value in this concept came over time. Mclean’s containers delivered a sealed unit from one commercial entity to another unmolested by the shipping company. As a result the shipper was not responsible for the contents of the container.
“What was new about McLean’s innovation was the idea of using large containers that were never opened in transit between shipper and consignee and that were transferable on an intermodal basis, among trucks, ships and railcars”
Individual governments could, and did, and still do, search containers – but on finding items of an illegal nature the shipping company was not / is not a liable party (unless it’s their container of course).
The alternative would involve the shipper taking on board a very significant business risk. Or, rather they wouldn’t take on the risk, they would police the cargo before carriage.
If business had had to carry these costs then the world would not have been transformed by globalisation. The current global trading landscape is as it is as a consequence (among other things, of course) of the way the laws have been set, in regard to international shipping, and how liabilities are apportioned for the transit of illegal material has been a surprisingly important part of what happened.
Mclean’s world was an industrial society where global technology flourished in the fields of engineering and the transportation of goods.
Our world today is an information society where global technology flourishes in the fields of communication and information and the availability of therein.
I take 3 big lessons from this.
Firstly, effective standardisation is good for the growth of the ecosystem. It seems harder to consider this a duty between people in the digital realm for some reason. Maybe it is the inherently personal nature of a piece of genius coding, compared to the more generic delivery of a standardised philips screw, but we have to sensibly recognise where innovation needs to be protected as an effective standard. Companies such as Google and Apple are building today’s essential industrial structure. As William Gibson has noted,
Now cyberspace has everted. Turned itself inside out. Colonized the physical. Making Google a central and evolving structural unit not only of the architecture of cyberspace, but of the world. This is the sort of thing that empires and nation-states did, before
In my opinion the new builders of the world should take as much responsibility for what they do and where they take humanity, as the leaders and founders of society are expected to take (I note the differential between expectation and delivery, but will counter that no such obligation whatsoever simply cannot be deemed the safer option just because its business not government) .
Secondly, we shouldn’t demonise all innovative business practices. Mclean looked to break a legal monopoly (the state levies) by slightly glossing over a few irregularities in his business holdings. He eventually got called on it and had to divest. But by then he had received the advantage he needed. I can’t see how containerisation could have been delivered by an outsider.
Thirdly, it’s clear that essential carrier infrastructure shouldn’t have to bear the costs of 3rd party legal breaches, where the carriage in question is a service provided legally and essentially, but abused by 3rd party users.
We don’t lock up ship’s captains for transporting a container full of stolen cars.
Similarly we shouldn’t lock up ISP’s, search providers and content hosts, simply because they make their service available to 3rd parties who may or may not post links to illegal content.
In both situations we should put up with a certain loss (some goods are smuggled, some links point to copyrighted material) to maintain a healthy functioning infrastructure for the rest of us.