James Boyle on Re-Inventing the Gatekeeper

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Talk at the Beyond Broadcast conference 2006.


Podcast URL = http://cyber.law.harvard.edu/ml/output.pl/41602/download/bb_boyle_2006-05-12.mp3

Webcast URL = http://cyber.law.harvard.edu/ml/output.pl/41619/download/Boyle.mp4


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Summary from the conference blog at http://www.beyondbroadcast.net/blog/?p=87

"Jamie Boyle, who was one of the authors of the comic book Bound by Law, available on the Duke Center for the Public Domain website and is a great resource not just for filmmakers but for creators in general, on the rights of users. Jamie begins with saying it’s impossible to cover everything. He’s been told “no downers,â€? but there are downers. This is a moment of exciting and scary possibilities. It’s hard to predict what will happen. Most of it is still to come. “My talk is about how not to screw it up.â€?

Two propositions:

1) we are bad at predicting the future of any new technological innovation. (The FCC thought cellphones would be a niche market.) If you predict everything something has to be right. Look at patterns of errors in prediction. He’s proposing that there is a blindness that forms a pattern in the world of communications. It is a blindness or inability to see clearly the potential of commons-based production. The potential of forms of media that are not tightly controlled by ownership and control. At every level of network policy we are blind to the opportunities of the less-controlled, open-access side of things. In any system, whether it’s about trying to generate kinds of content, or setting up a network, should it be open, the design of the computer….at every level—look at the work of Larry Lessig and Yochai Benkler—we look at conflicts between openness and closedness. We have a systematic bias against openness!! Is there data to support this hypothesis? Take a look at the last 20 years of IP law. Should we extend the copyright term for dead authors in the hope they’ll write again? Yes!! An amazingly inefficient subsidy! WIPO is considering a new broadcasting right. In the US you make a deal with a network, you have a contract, fine. Many other countries have signed a treaty permitting a broadcasting right that lies on top of copyright that gives broadcasters a right in the same material. So rebroadcasting or reuse sends people not only to the copyright holder but also to the broadcaster. The pro argument? It helps broadcasters build networks. Have US broadcasters been inhi bited for lack of this right? Of course not. So what’s the solution? Not only to have this right but to EXTEND the broadcasting right to webcasting!!

2) We know about this phenomenon, it’s studyable. This is dumb, in “a rich, patterned, complex way.â€? It’s not random, it’s patterned. Companies are making decisions that are not even in their own self-interest, which is usually hard to see because they manage to lock everything up. But sometimes they lose. Movie companies lost when they tried to stop movies from being broadcast. But by losing that Supreme Court cases, we could make free copies of movies, the costs of VCRs dropped, and the entire video rental business was born, which kept the movie business alive. Not controlling it opened up a new market. Why do we undervalue openness? Property rights are understood around physical things. I have a bottle of water, it’s my water. If I have a farm, I want to be able to use it, stop people taking my animals, and so on. High levels of control makes sense. We’re not good yet at understanding intangible stuff. It’s really hard to deplete an idea, to overfish an idea, to claim that I taught my students something and now I don’t know anything about it!

Our assumptions around control and design are material, not digital. It doesn’t work very well. We’re not always wrong, but we are wrong by inclination, we tend the wrong way. It’s hard to imagine a law exam in which the correct answer is, don’t lock things up. We assume your client should have all the rights and have maximum control.

Let’s imagine that you don’t know anything after 1992. And I say, we’re assembling this group. Would we design something that was entirely open, where the intelligence is at the user side? There is no Google, no Mapquest….I think we’d say, gosh, there’ll be porn. And spam. And wackos, disagreeing with NPR and PBS. Being fair, being ourselves, we’d invent Minitel, the French network of the 1980s, a set of dumb terminals in a system directed by a central agency. And then we’d give poor people more time on it.

The Internet is a historical anomaly. Geeks invented it, and then bam, it was too big to control. And at every stage we’ve tried to get it back in the box. Windows Vista will control your choices. The network itself, the providers want to control how the information flows, so Disney can send its programs to you quicker than others. We need more digital rights management so it’s so imbedded that there’s no space outside it. At the level of the individual company—there’s always this “let them comment on it? What will they say? Better notâ€? attitude.

At every level we underestimate the advantage of the commons. But where toset the balance? It’s an empirical question. Sometimes you do need control. Is this a “downerâ€?? No. If we know we have a cognitive disability, then you can deal with it. Pilots learn to trust the instruments, not their own reactions in bad weather. We can take into account our cognitive bias.

What’s the take home? Wherever it is possible, push a little on your sense of just how much control is needed. Don’t introduce crummy new rights like broadcast rights. Don’t give up on net neutrality.

It’s not a religious question. It’s an empirical question. Sometimes we need control. It’s 1992. We don’t know the future. Imagine WGBH Boston has been given the job of designing the greatest reference work the world has ever seen. You want the Ency Britannica on steroids. You say, first, you need very strong copyright rights because we’ll have to invest so much. Besides, what about the wackos, we need control. We need a trademark, we need it to stand for quality. And we need to police it. That’s the plan. BUT when’s the last time anyone looked at an encyclopedia? We just use Google. We have an amazing ability to use a crude form of peer review. But in 1992, people would say, nobody would create this stuff! What’s the incentive?? It’s a fantasy!! But guess what, it just happened to be true." (http://www.beyondbroadcast.net/blog/?p=87)