Jamie Boyle at Beyond Broadcast

The Beyond Broadcast conference at Harvard Law School gets off to a bang with a presentation by Jamie Boyle, Co-Director of the Center for the Study of the Public Domain at Duke Law School, and very funny man. He opens by explaining how tricky it is to talk about open networks and intellectual property without being pessimistic. So he starts with the principle that we’re going to talk about how networks are working today and how we can avoid screwing them up – on the level of law, policy and corporate behavior.

This involves understanding two facts about human beings. One is that we’re very bad at predicting the future of technological innovation. When the FTC considered the mobile phone, they projected that it would be a niche market, with 400,000 users worldwide. Early innovators of the telephone believed it would be a broadcast device, letting everyone in Boston listen to a weather report at the same time. Our history of prediction forces us to admit a “principle of technological humility”.

A recent focus on behavioral economics – actually studying how humans make economic decisions – helps us understand that humans aren’t rational economic actors. Instead, we’re hugely risk averse – if we correctly evaluated risk, people wouldn’t purchase extended warranties for their appliances. Instead, we use heuristics which are often wrong. Oddly enough, we’re wrong in predictable ways – there are patterns of cognitive blindness.

There’s a similar pattern in the world of communications – we’re systematically blind to the potentials of commons production – at every level of network policy. We tend to
support strategies that lean towards closure and proprietariness, devaluing openness. The answer isn’t that we should always be open – there’s a balance between openness and closure, but we tend to systematically undervalue openness and overemphasize the dangers of commons-based strategies.

And this means we make really stupid decisions. Should we extend copyright into the indefinite future? Sure, let’s do it! “Would you like another heaping slice of monopoly rent, sir?” Don’t mind if I do! We have an inability to understand the costs imposed by locking things up, right at the moment we could have digitized them and made them available as a public good. Why would WIPO consider issuing a special broadcast right for broadcasters, allowing them control over the retransmission of content, whether or not they created those works? “We’ve got this right… so let’s extend it and apply it to webcasts where the economics are totally different!” As Boyle puts it, “This is dumb in a rich, patterned, complex way,” like a fine wine.

What happens if you open things up instead? The movie industry was threatened by VCRs – the policmakers finally got one right and permitted them to become pervasive and cheap. This turned out to be brilliant for the movie industry – for a while, was their best market, a market they never thought of and would have banned, if they had won the battle.

It’s not hard to understand openness if you think about ideas. It’s hard to “overfish” an idea – “I told my students about fair use today – now I don’t know anything about it!” But smart people seem to blow it all the time. Game companies discover that they’ve got people willing to create new levels for their games: “What should we do? Option 1 – let’s prohibit them and threaten them with lawsuits!”

This happens in no small part because lawyers are taught to help their clients maximize control. There’s basically never a moment in a legal education which encourages you as a lawyer to cede control over a situation.

But open networks need us to cede control. Computers should be general purpose – they won’t be, once you load Microsoft Vista – they’ll be used for approved tasks only – that’s the promise of “trusted computing”. Media providers say “Disney needs to be able to transmit video faster than some video blogger” – this network neutrality thing is something like communism!

If we’ve learned anything from the principle of technical humility, we’d learn that we should be as open as possible for as long as possible. “Let the eyes of others who see better than you” envision possible futures. Don’t introduce “crummy new rights” just to create barriers to entry.

If you didn’t know anything about the history of the past 14 years, how would you create a great encyclopedia?

(Jamie, a Scot, takes an aside and mentions that the original encyclopedia Brittanica was a Scottish production. This explains why, in a three volume encyclopedia, the first volume covers only “A-B”. There’s an article on Accountancy that’s 80 pages long, and one on Brewing that’s over 100 pages…)

Obviously, in creating this encyclopedia, you’d exercise lots of control – hire experts, edit them closely, make sure they got it right. You’d trademark and copyright everything. You’d never dream of encouraging everyone around the world to write things and try to find the good stuff through the “waterhole searching” strategy – follow the tracks of the other animals to the good stuff. “A search engine for content generated by millions of people?” What a ludicrious concept! And yet, “it just happens to be true”.

beyondbroadcast