2011 11 06

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Contents

Feature Cast for 2011-11-06

(00:00:17.422) Intro

(00:03:36.242) Hacker Word of the Week: fontology

(00:04:37.161) Rant: Copyright Is Becoming Toxic

  • While I do not consider myself a copyright abolitionist, I am increasingly sympathetic
    • To those like Nina Paley who see no real need for these state sanctioned monopolies
    • Some of it is inspired by Cory Doctorow's latest writing
      • Framing the role of any sort of limited monopoly as a means to increase cultural production
    • Probably more than that I've been thinking a lot about the book I am currently reading
    • In particular the example after example that they provide
      • Disproving the notion that any increase of intellectual property law
        • Has netted the much promised uptick in invention or cultural creation
    • As an advocate for free culture and open technology
      • I've realized quite the opposite, that if raising creative product is the goal
        • The advent of cheap and accessible
          • Digital technologies unleashed by the network computer
        • Have done far more to achieve this end than any regulatory fiat
    • The idea that new copyright laws like the DMCA and the proposed PIPA and SOPA
      • Are about nothing less than propping up failing business models
        • Incumbent within the aptly self labeled copyright industry
        • Is so oft repeated in the sources I read and conversations I inhabit
          • As to become effectively meaningless
    • I think we need to move well past this rhetoric
      • To push the policy fight on two separate but related rhetorical fronts
    • First is acknowledging that almost any scheme other than state granted exclusionary powers
      • Would do more to foster a profusion of creative acts
    • Adrian Johns' "Piracy" is an extended ode to all other forms of keeping a minimum of order
    • This leads me to my second point and the thrust of my rant
      • That the current progress of copyright maximalism is nothing short of toxic
    • A status quo of gated invention, whether that is artistic or mechanical
      • Has been fostered which is inimical to any notion of progress
        • Or even to what it means to pursue your inalienable rights
        • In a present so heavily mediated, and increasingly more so
          • By the networked digital computer
  • Re-evaluating the purpose of copyright
    • As I've said, for the contemporary copyfighter it is taken as given
      • That today's intermediaries see it as a tool to prop up their business models
    • I have always understood this as classic game theory
    • When you are losing, you take wild risks as there isn't any increased harm
      • From increasing the rate at which you fail
    • When you are winning, as a record label or movie studio
      • That enjoys fairly predictable revenue from a fixed formula
        • Such as Summer blockbuster followed up with the long tail
          • Of post-release purchases for home theaters and rental fees
      • You don't experiment as failure costs much more dearly
        • As it will invariably eat into the healthy bottom line
          • Generated by your legitimate revenues from existing lines of business
          • Not to mention the healthy subsidy most accrue from their rents
            • Owing to their dominant market position
    • The promise of copyright and patent now has more to do
      • With wielding an disproportionate veto power
        • Over anyone unlucky enough to arrive in an existing market later
    • Innovators, new entrants used to see the prospective rewards
      • Of intellectual property as at best an incentive
      • At worst it acts as a barrier to entry
    • Witness what many are calling the patent thicket
    • Firms collect defensive patents not to protect actual inventions they build and exploit
      • But to have leverage for cross licensing deals that simply allow them to operate
    • Any technology venture that does develop or acquire at least a minimal portfolio
      • Exposes itself to any form of troll that is less interested
        • In the progress of the useful arts than minting money
          • From an arguable patent or set of patents
    • Copyright at least hasn't devolved this far but make no mistake
    • Former limits on the sorts of claims an incumbent could make have been successively blurred
    • A few incredibly lucky, like lottery winning lucky, authors have successfully pressed
      • Dangerous suits where they have broadened the contours of copyright
        • So that a space of ideas, like character archetypes and broad plots
          • Have been deemed protectable at the expense of follow on creators
    • Documentarians might disagree with me when it comes to incidental uses
      • Or anyone who feels the pain of orphan works
        • That is those artistic products that are well outside their commercial life
          • But still within copyright for whom the original rightsholders cannot easily be found
    • Increasingly those with power, in the form of money
      • Use it to close the door after they've achieved success
    • But is this disadvantaging of the newcomer really what copyright is about?
    • What other regulatory system has its purpose, its intended outcome
      • As the creation of an system of entitlements without consideration for some public good?
  • BREAK
  • If you take the progress clause of the Constitution to heart
    • Then it makes sense to at least level the playing field for those just starting out
      • If not outright tip the scales in their favor
    • Innovators of all kinds bear far more risk of uncertain reward
      • Than incumbents who are much more likely to stand pat
        • Simply repeating what they did to get them to where they are
    • Even worse, there is reason to believe that it is in the interest of established intermediaries
      • To actually limit the amount of new commercially viable creative efforts
        • So as to funnel more revenue through their chosen investments in any given year or season
    • I've often suggested fostering more, smaller, diverse efforts
      • Encouraging the breaking up of large investments as with blockbusters
        • To fund many more scaled down but much more ambitious projects
    • Originally I though this might not need to be entirely at the expense of large undertakings
    • Levine and Boldrin in arguing about the depth of harms stemming from retroactive copyright extension
      • Make the case that keeping works out of print, out of circulation
        • Increases the marketability of the most current crop of films, albums and books
    • I fear that a similar logic may apply to diversifying newer products
      • That we may have to completely kill off the old business models
        • That work so hard to perpetuate themselves at the expense of any other approaches
    • If we do manage to scale investment down, making the whole of cultural creation more risk resilient
      • I think this leads naturally to an organic re-shaping of the tools of production
    • The equipment, software and channels used by the so-called bedroom producers
      • Because a much more natural default, better matching to low cost and high output
    • Maybe there are economic models that can give a pass to production at this scale
      • While raising friction to the risk sensitive, large scale gambles
        • That have led to the current state of affairs
    • Adopting such systems undoubtedly would be like accelerating the healthy erosion
      • That we are already seeing not just from piracy which is an really an unanswered market need
      • But also from the growing profusion of small scale experiments
        • Like the pay what you will model or Kickstarter-like crowd-based, right-sized capitalization
  • Cheap, accessible tools and channels are doing more to foster cultural creation
    • The original barrier to creation was the high cost of production
      • But this is a function of historical accident not an inherent quality to preserve
    • In the few cases prior to the emergence of digital production tools
      • Where production costs were lower, perhaps just in the form of re-sold used tools
        • There were still cost barriers, often embedded in the distribution channel
        • And its attendant costs like packaging and marketing
    • I think we are well into overcoming the historical bias around production cost itself
    • We need to continue to focus on those remaining costs
      • Understanding the real benefit in terms of more culture creation
        • Of packaging, marketing and distribution
    • Channels are about reaching audiences not about paying the historical middle men
    • A couple of years ago, the figure for the amount of video uploaded to YouTube per minute
      • Was a staggering 29 hours, an inconceivable amount of material
    • Sure, much of that, if not most, is no doubt very banal
    • You cannot argue, however, that it is not cultural production
    • Whether it is a slickly produced, intelligent indie film
      • Or some kids just making sense of the latest meme to sweep through the net
      • All of it plays a useful part in our collective attempt to make sense
        • Of the world around us, one that is increasingly mediated by the network
    • As of a month or so ago, YouTube's figure for hours of video per minute was up to 48
    • Clearly there is effectively a lowering of cost or we wouldn't have seen this number nearly double
    • Peer distribution systems like YouTube re-distribute the costs
      • And allow reaching audiences to scale down to the minimum number of people
        • For it to be worth investing the small cost in time and bandwidth
    • In many cases, that audience is undoubtedly in the single digits
      • Well below the threshold of even trying to measure for more traditional channels
  • BREAK
  • The latest crank of the intellectual monopoly ratchet
    • Are what cause me to think of copyright, in particular over zealously enforcing it, as toxic
    • PROTECT IP and SOPA both propose to interfere with the key elements
      • Of how the core architecture of the internet works
    • They also grant rights of action directly to private actors without any judicial oversight
    • If you believe the ridiculously overblown rhetoric
      • Driving the formation and consideration of these bills
      • Then it seems like due process and adequate oversight are more critical, not less
    • The higher the stakes, the more dear the cost of a false prosecution
      • The more we should be concerned about pulling the trigger of law too quickly
    • Proponents argue about Internet time and how quickly bad actors can move to evade threats
      • But this is spurious framing at best, meant to hide the risks of these proposals
    • We've already seen how badly prone to abuse the DMCA is
      • And these new bills vastly inflate the odds in terms of not just removing content
        • But chilling activity around that content whether that is advertising, payment processing
          • Or even the critical indexing and searching of the web on which we rely
          • To navigate the very expanding frontier of the web
    • Worse in my mind is considering the question of when these measures fail
      • What will the incumbents try next?
    • What is the cost of failure of these increasingly draconian measures?
    • This is another reason I am increasingly thinking that the current copyright regime is toxic
    • Not only does it poison the well for the true sources of increased cultural creation
      • But like an overapplied insecticide, it is leaching into places it doesn't belong
        • Causes damages that are far out of proportion with the original problem it is trying to solve
    • Worse, what we need are not poisons to curtail certain encroachments, like the supposed pest of pirates
      • But nutrients, supplements, even fertilizers to foster more creativity, more works
  • I still think some sort of system can serve to encourage creation
    • Boldrin and Levine concur, making a clear and careful point in the outset of their book
      • That they object to the current system on monopolies, not that they think
        • Invention and creativity should have to fend for themselves in a regulatory void
    • We are already seeing some experiments in this vein
      • Such as new media channels that utilize revenue sharing models
    • For all its flaws with regards to fair use and free expression
      • When YouTube's Content ID infringement system kicks in
        • It offers a third alternative between leaving the post alone or taking it down
    • A rights holder can opt to have an ad displayed and receive compensation from the subsequence revenues
    • We need more thought and ferment around models that acknowledge
      • Other incentives to create such as reputation, the inherent urge to create
      • Systems like open source projects that foster invention using courtesies not ham fisted rules
    • In short, regimes should be like dietary supplements, vitamins
    • In correct doses, usually small, they are entirely beneficial, strengthening a system overall
    • Better yet, if we entertain a holistic, inclusive and organic approach to creativity
      • Then many of the tools we need will arise on their own
        • Just like getting what the body needs by consuming more leafy vegetables
        • Rather than investing too much energy in synthesizing pills as a stop gap
    • Regardless of where this nourishment derives, if we indulge in too much of it
      • Just like if we consume far too much of any given vitamin or mineral
        • It flips from being of benefit to expressing a toxic effect
        • Entirely opposite of its original intention

(00:23:51.485) Outro

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