Aug 242011
 

The Washington Post editorial board favors legislation to protect copyright holders from infringement online. Here’s how the Protect IP Act would work:

The proposal would allow the Justice Department or a private rights holder to move against a rogue foreign Web site by convincing a federal judge that the site is “dedicated to” and has “no significant use” other than copyright or trademark infringement. Defendant Web sites would have the right to contest the allegation. An otherwise legitimate site that may have sold a product that turned out to be a fake or unknowingly linked to or posted an item to which it did not have the rights would be spared legal action.

Putting aside the overall desirability of the bill – I’d have to learn more – what would the impact be on copyright holders? Would their position be strengthened? That’s the assumption, and certainly the conventional wisdom. But I can imagine (fantasize?) about a different result.

Say tomorrow downloading or streaming movies or music illegally was impossible. What would the impact be? Would a generation raised on free access to culture throw up its hands and start paying? Or would those artists, creators, labels, studios, etc. who made their content freely available legally gain an advantage? You could imagine shows that could be streamed for free online starting to beat out those that couldn’t, once illegal downloads went away. Or music licensed under Creative Commons finally enjoying significant economic advantage over that which had to be purchased.

You can tell yourself a story about either open licensing or at least legal streaming offering greater not less competitive advantage in this environment. I find it easier to imagine in music, personally, because it’s more difficult to imagine a unified stance against free distribution. Sure, maybe you could get 95% of TV shows behind paid gates. Ditto movies. But does anyone think that’s how it’d go with music? Artists and labels would put their music out for free (either open licenses or legal streaming) in order to gain advantage against more popular artists. And in that way, perfect legal control of illegal copying could theoretically be a boon to those favoring free (as in beer or speech) access to culture.

None of this may be likely, and the kind of perfect control required is pretty spooky. But I find it to be an interesting thought experiment.

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Aug 232011
 

A friend asked for my thoughts on NPR’s piece from a few weeks back on “patent trolls.” Whereas, I am fairly confident about my views on copyright, I’m much less so with respect to patents. But hopefully my response below represents at least a decent starting point for thinking about their efficacy. What follows is my email response to my friend, lightly edited, mostly to add capital letters….

The piece fit pretty well w/ what i’ve seen elsewhere and it’s specifically about software patents. a couple quick things:

1) The point of patents are to incentivize innovation. That’s it. Not to grant people rights to their god given property or whatever. It’s a consequentialist framework.

2) Best I can tell there is near consensus in the software and computer science worlds that software patents are a bad idea. I base that on references I’ve read elsewhere, what’s said in the piece itself, conversations I’ve had with programmers and a talk I went to earlier in the year by a notable comp scientist.

3) It’s completely possible that software patents make no sense but that other areas of patent law are either working well or even are not strong enough. While I think the case for shortening copyright terms is 100% airtight, I don’t pretend to have a view about, say, pharmaceutical patents. Software, though, seems much clearer.

Now to look at the best argument presented in favor of today’s crazy software patent setup, from the NPR piece:

IV, for its part, says its job is to encourage invention, not to bring products to market.

Imagine an inventor out there — someone with a brilliant idea, a breakthrough. This inventor has a patent, but companies are stealing his idea. And this inventor doesn’t have the money or legal savvy to stop them. That’s where IV comes in. It buys this inventor’s patent, and it makes sure that companies who are using the idea pay for it.

(IV = intellectual ventures, a “patent troll”)

So this seems pretty sympathetic right? If not for this, lone inventors couldn’t reap the rewards of their creations. They’d be stolen by big companies. So there are 2 lines of attack against this i think.

a) The piece points out this isn’t realy how it works. This is a shady business for big money based a lot around big companies vying against each other, not about protecting small guys

b) Even if it were like that, we have to go back to the purpose of patents. The purpose of patents is to get innovation. So if a guy invents something and a company steals it, is that bad? Only if no one was going to invent it otherwise. if, absent the incentive, that innovation is never brought into the world.

That sounds harsh, and even i dislike he idea of someone else making money off another person’s idea. But we have to respect the point of intellectual property, which is incentives.

And just as importantly, the above fake scenario preys on our leaning to prize “invention” and “ideas” and undervalue execution. Talk to any investor or entrepreneur and they will tell you that it’s execution that makes a successful product. So when we bemoan the guy who didn’t get paid for an “invention” we miss a lot of the value add. To create a new thing takes more than an idea. Whether the idea itself should be given protection under IP needs to be based on the consequentialist view described above.

I have a whole other set of thoughts on the idea vs. execution thing, and what i described to you is the mainstream entrepreneurial view, NOT my own view (though my own view also places relatively less value on initial ideas or “inventions”) but that’s a separate topic.

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Aug 212011
 

My latest Atlantic post is up:

As I wrote in a previous story, media outlets have an opportunity to design media that accounts for users’ biases. Author bios present such a chance. Without any change to the authors or their content, bios could be constructed in a way that maximizes cultural credibility by tapping into the social graph.

Please go read the rest!

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Aug 182011
 

I didn’t bother to write anything on Neal Gabler’s vacuous piece in NYT’s Sunday Review on how the internet has somehow killed big ideas. Luckily others came up with worthwhile responses. I confess, I’m tired of responding to evidence-free anti-internet screeds (see here, here.) But Kevin Drum’s response had an interesting tidbit:

Honestly, I think I liked this genre better back when people blamed TV for the decline and fall of American youth. I always thought the anti-TV crowd at least had a point: television really did crowd out things like books and magazines, which were better suited to big ideas and complex arguments than the tube. But social networking? As near as I can tell, it’s mostly crowding out in-person gossip and….television. That seems like a much more benign trade.

Were anti-TV advocates as misguided and ill-informed as anti-internet commentators? I tend to agree with Drum that there’s a difference, and hold up the Net’s crowding out of TV as a benefit. But it’s an interesting comparison.

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Aug 182011
 

We know our political journalism is deeply, deeply messed up. But Politico is taking process coverage to a new level with its coverage of its coverage of Biden calling Republican debt negotiators terrorists. I get that it’s defending itself against other outlets questioning sources, something any publication would do. But how self-satisfied is this?

All told, this was exactly what makes a great Washington scoop: It was an exclusive report that drove the political conversation — and continues to do so — on a major issue. The fact that we’re still talking about it, Obama is still being asked about it and The Washington Post is still fact-checking this 16 days later shows the story still has legs.

Whether or not Biden used the term “terrorist” in describing Republicans’ negotiating tactics – a matter of precisely zero substance – is, apparently, a “major issue.” That we’re still talking about it is depressing.

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Aug 172011
 

In a nutshell: not yet.

I wrote a post for The Atlantic back in March when the paywall first launched that called it “unsustainable.” And yet, as Felix Salmon has detailed here and here, the paper is on track to hit its goal of 300,000 digital subscribers. Was I wrong? I don’t think so; at least not yet.

A bit more from about NYT’s success, from NYMag:

It will take years for the ultimate wisdom of the Times’ strategy to be apparent, but the company’s second-quarter-earnings report proves that its digital-subscription plan has thus far been an enormous success. The internal projections have been closely held, but several people have confirmed that the goal was to amass 300,000 online subscribers within a year of launch. On Thursday, the company announced that after just four months, 224,000 users were paying for access to the paper’s website.

As Felix notes, that revenue is a drop in the bucket, but still promising. So here’s what I wrote when the paywall launched:

I wouldn’t be surprised if the NYT can raise some revenue from this in the short term from people young enough to have canceled their paper subscription but not so young to be heavily into social media, at least as a means of getting news. (Age isn’t the only relevant factor here, but it’s one.) But that already limited demographic will shrink over time. Put another way: the number of users interested in NYT content but not already reliant on social media — or even just capable of using it — to access news is shrinking and will continue to do so.

In other words, NYT was leaving some money on the table and they decided to pick it up. But I’m skeptical that they can grow digital subscriptions over time. Eventually, I’d expect the pool of digital subscribers to shrink. But Felix has some good pushback on that kind of logic:

Sales people and business-side executives tend to believe as a matter of faith that if people can get something for free, they won’t pay for it. But all they need to do is look at their own behavior to see how that isn’t true: when they go to a restaurant in a distant town that they’ll never visit again, they still leave a 20% tip. A large segment of the population feels that it’s only proper to pay for something if you’re getting value from it…

I had a couple brief online conversations after I posted a quick screed against record companies that suggested paying for music may not be necessary, and based on those conversations Felix is, at minimum, partially right. At least when people are used to paying for something, they feel obligated to keep paying for it. Multiple people spoke to me about how important it was to pay for music in order to support the artist, etc.

But is this true in some absolute sense? That it’s getting value that prompts people to pay? More likely it’s being accustomed to paying for something that gives you value. Which is to say I expect that a generation that grew up never paying for information won’t feel compelled to pay for news.

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Aug 172011
 

The New York Times had a lengthy piece on a legal battle between musical artists and the recording industry. Here’s the lede:

When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.

The record companies object, and there seems to be a legal battle shaping up. But nowhere in the article is there any mention of the fact that no one should own these recordings after 35 years!

My brother, a law student, pointed out to me that mine is a normative claim, whereas the article centers around a legal battle. True. But it’s more than that. By the criteria the Constitution sets out for intellectual property, today’s excessive terms clearly fail. The purpose, laid out in the copyright clause, is:

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.

I can’t say it any simpler than this: no one seriously thinks today’s copyright terms are maximizing the creation of art and culture. It’s blatantly obvious that terms could be significantly shorter without any loss in terms of creation. So by the the criteria set out in the constitution, the battle NYT describes is a sideshow; the real story is that copyright terms are out of control.

All I’m asking for is a brief mention. The artists’ “side” is represented, as is the record companies’. What’s missing? The public’s side. This is the tragedy of what political scientists refer to as concentrated benefits/distributed costs. Artists and record companies each gain dramatically from excessive copyright protection. The public loses out, but each individual loses only a little bit, so it’s hard to organize politically to institute more sane policies. That explains the politics of copyright, but one would hope the NYT would go out of its way to give voice to public interest arguments.

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Aug 122011
 

What is the biggest impediment to a digital read-write folk culture in music today? Draconian intellectual property law, of course, that resists the application of fair use, presumes bad faith, and seeks to intimidate. What accounts for the continued existence of draconian IP in music, and for the over zealous attempts to enforce it? The record companies, obviously.

So what should we say to the fact that Spotify is a darling of the recording industry? Should we rejoice that we finally have a free streaming service that’s immune from legal hassles? No. We should count it as a minus. The worst thing about the otherwise excellent Spotify is that the record companies support it.

Now you might argue that Spotify represents the capitulation of the record companies, as they have finally agreed to make their catalogues freely available under relatively minor restrictions (the free version is interrupted by a good number of ads.) I don’t buy it. The industry didn’t wake up one day and decide it hated making money. So either 1) it sees Spotify as a way to get consumers to start buying music again or 2) it thinks ad revenue is the way to go.

The problem with #1 is that there’s not really any reason why we should have to pay for music now that the cost of delivery is zero. And while I have less of an issue with #2, I’ll believe it when I see it. (See: newspapers.)

Moreover, even to the extent that the recording industry can wring money out of a Spotify model, that represents an impediment to a return to folk culture of the kind that Lessig and others have described. If the recording industry uses Spotify to endlessly advertise their “stars”, any progress they make will come at the expense of unknown artists that might otherwise thrive under the folk model.

I realize I’m working off of a number of assumptions that I’ve not previously blogged, but I just can’t see a digital folk culture for music so long as the record companies are a significant piece of the puzzle. So when you are shopping for a digital music solution, ask “do the record companies like it?” If the answer is Yes, that counts as a negative.

 

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Aug 072011
 

Nieman Lab – far and away the best resource for tracking the evolution of journalism – has a good post up the Knight-Mozilla News Technology Partnership, and on what lessons journalism can learn from open source. Overall it’s characteristally excellent, but I have to take issue with this:

Finding 4:
* Open-source development is collaborative, free, and flexible.
* Producing news costs money, and open source may not get to the heart of journalism’s business problems.

Open-source software development is premised on the idea of coders working together, for free, without seeking to make a profit at the expense of someone else’s intellectual property. Bit by bit, this labor is rewarded by the creation of sophisticated programming languages, better-and-better software, and the like.

But there’s a problem: Journalism can’t run on an open source model alone. Open source doesn’t give journalism any guidance for how to harness a business model that pays for the news.

I think this ignores the rich mixture of motivations, business models, etc. that comprise the open source movement. Take the line “Producing news costs money.” Someone might say the same about software. Doesn’t producing software cost money? Well, the history of open source tells us, basically, not always in the ways you would think. The big shift for the software community has been to question very basic assumptions like “producing software costs money” or “producing software requires organization by firms.” For journalism to truly adopt the lessons of open source software, it must question those basic assumptions as well.

Well, ok, fine. But at the end of the day doesn’t producing news cost money? Sure. But even here it seems that the Nieman summary is missing an appreciation for the richness of the open source model. Specifically, the line “Open source doesn’t give journalism any guidance for how to harness a business model that pays for the news” ignores the great number of for profit entities operating in the open source software space. Companies like IBM and Red Hat play a huge role in the development in open source software because their involvement brings strategic and financial benefits. Coders in the employ of companies like IBM are crucial to the development of open source projects like Linux; it is a mistake to ignore these contributors when thinking about open source. And Red Hat operates on a service model, making it easier for customers to successfully adopt open source software in their businesses.

Maybe these sorts of arrangements transfer into the journalism space and maybe they don’t. But to act as if open source software offers no lessons on how to make money is to ignore a significant piece of the open source landscape.

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Aug 042011
 

I know I’ve already written twice about the Mercier/Sperber argumentation research, but this NYT piece brings to mind one more point to make. Mercier and Sperber argue that we evolved our capacity for reason largely to convince one another. They make the related point that reasoning is a social rather than an individual process. Regardless of whether they’re right about the evolutionary roots of reasoning, the latter point is critical to discussions of bias. The NYT piece talks about the research with regard to the peer review process:

Doesn’t the ideal of scientific reasoning call for pure, dispassionate curiosity? Doesn’t it positively shun the ego-driven desire to prevail over our critics and the prejudicial urge to support our social values (like opposition to the death penalty)?

Perhaps not. Some academics have recently suggested that a scientist’s pigheadedness and social prejudices can peacefully coexist with — and may even facilitate — the pursuit of scientific knowledge…

…It’s salvation of a kind: our apparently irrational quirks start to make sense when we think of reasoning as serving the purpose of persuading others to accept our point of view. And by way of positive side effect, these heated social interactions, when they occur within a scientific community, can lead to the discovery of the truth.

The point I want to make here is simple and perhaps even obvious. As science illuminates various shortcomings in our ability to reason, our best hope is to design better social processes to account for them. We already do this. From the courtroom to the newsroom, we structure our intellectual processes to help overcome our own individual shortcomings. But with increasingly sophisticated research into how we think, and with the digital public sphere providing both massive amounts of data on how we communicate and the opportunity to constantly redesign our media environment, we have the chance to design better processes that allow us to overcome our individual faults and reason better.

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