The Public Domain

Twitter

James Boyle — Wed, 01 Jul 2009 18:40:03 +0000

I am a terrible poster boy for web 2.0 — I’ve spent a lot more time working to protect it than actually using it. But recent experiences giving a lecture in Britain convinced me that Twitter really could be useful so I decided to take the plunge. I am now “thepublicdomain” http://twitter.com/thepublicdomain

Mark my words, it will be car phones and electric typewriters next…

Shakespeare Debate

James Boyle — Wed, 01 Jul 2009 17:19:43 +0000

I am on Radio West today, talking about a subject far from intellectual property — the authorship of Shakespeare’s works, the subject of a novel that I wrote two years ago, called The Shakespeare Chronicles.

For those who are interested, I have also included the brief I wrote when I was Shakespeare’s “lawyer” in a mock trial called In Re Shakespeare in front of three Supreme Court Justices. (I got the verdict but Justice Stevens has since declared that he thinks Shakespeare was really the Earl of Oxford.) If you’d like to see a fragment of me presenting the oral argument in that debate — and being cross examined by Justice Stevens – there is a small video excerpt on Youtube. (Note the nice ducktail haircut — what can I say, it was the late 80’s.)

Click here to view the embedded video.

Obama in Cyberspace

James Boyle — Thu, 18 Jun 2009 14:27:33 +0000

There have been some hiccups with the accessibility of my new Financial Times column.. which (ironically) is about accessibility.. Here it is.. (and thanks to the excellent Financial Times people who let me keep the copyright to my columns and allow me to put my own copies of those columns under a CC license)– check out the other people they have writing on intellectual property, communications, and the internets.

Obama in cyberspace

By James Boyle

For those stalwarts who lived through the Bush years in a thrall of horror and disbelief, broken only by Jon Stewart monologues, Barack Obama’s arrival has been cathartic. True, the sight of your retirement account statement may bring on nausea, chills and palpitations. (Is it really unrealistic to think of working until you are 70? As a bicycle messenger?) But there is always the soothing relief of hearing the announcement that yet another Bush policy has been overturned, even if the announcement generally comes with a pragmatic footnote. America is now against torture again. (But also against prosecuting those who tortured and against declassifying photos of abuse.) Guantánamo will be closed down. (Though we don’t know quite where the inhabitants will go.) The United States will do something about climate change. (Even though the actual plan is full of corporate giveaways.) The phrase ”Justice Department” no longer sounds like an oxymoron. And so on.

Sometimes the ”pragmatism” looks a little like ”not trying” – as when Obama scurried quickly into retreat on immunity for the telephone companies who participated, probably illegally, in spying on US citizens. But those who understand politics better than I give him fairly high marks on his combination of principle and pragmatism. And since I couldn’t craft a legislative majority at a dinner table over what Chinese food to order, I am reluctant to throw stones at those who have to deal with considerably more unwieldy coalitions.

So what does Obama’s mixture of principle and pragmatism look like in the world of the new economy, and more specifically, the world of intellectual property policy? The picture is definitely mixed. On the one hand, he has brought brilliant people to important positions. It is nice to have a Nobel prize-winner (Steven Chu) as Secretary of Energy, and another (Harold Varmus) as the Co-chair of the President’s Council of Advisors on Science and Technology. It is hard to imagine the Obama team talking about science as if it were simply one inconvenient partisan position or ridiculing the ”evidence based mindset” or, for that matter, evolution itself. The administration has good ideas about what to do with the slow motion train-wreck that is the US Patent and Trademark Office. It is not clear if those good ideas will be implemented, but one can hope. In the area of copyright law . . . well, the signs are mixed.

Traditionally, Democratic administrations take their copyright policy direct from Hollywood and the recording industry. Unfortunately, so do Republican administrations. The capture of regulators by the industry they regulate is nothing new, of course, but in intellectual property there is the added benefit that incumbents can frequently squelch competing technologies and business methods before they ever come into existence. Years of making policy this way have given us retrospectively extended copyright terms that are in excess of 100 years. (Perpetual copyright ”on the instalment plan” in Peter Jaszi’s words.) It has given us a one-sided and unbalanced view of the world, which registers with complete accuracy the real dangers that the content industry faces from any new technology, while ignoring the benefits those same technologies can provide – including to the content industry. The Obama administration’s warm embrace of Silicon Valley, and Silicon Valley’s chequebook, had given some hope that this pattern would change – and I think it will. Now, instead of taking copyright policy direct from the media conglomerates (who, after all, have a very legitimate point of view – even if not the only point of view) it is quite likely that the administration will construct it as a contract between content companies and high-technology companies such as Google. In some places, citizens and consumers will probably benefit, simply because optimising for the interests of two economic blocs rather than one is likely to give us a slightly more balanced, and less technology-phobic, set of rules. And perhaps the administration will go further. But recent actions make me doubt that this is the case.

First, the administration’s messages about the so-called copyright czar have left little doubt that it is the content industry that is going to be commanding the cossacks. (Would you really want to be called a “czar”? We don’t have a patent tyrant, or an antitrust dictator, so why a copyright czar? But I digress) The goal of the law that created this position is simple. It is to give unprecedented high-level governmental representation to the interests of a particular set of industries, so they can, ahem, help ensure that other agencies, such as the Justice Department put the appropriate resources and zeal into prosecuting DVD pirates and handbag counterfeiters. One wouldn’t want them to be confused about their priorities after all. (Even the Bush administration Justice Department, which historically thought nothing except gay marriage was constitutionally suspect, managed to perceive that this was a tad problematic if one believed in prosecutorial independence.) Obama isn’t responsible for this silly law. But he does control who fills the position. So far as I can tell, the debate has now shifted to precisely how dogmatic the representation of intellectual property holders should be. The idea that intellectual property policy might actually require a balance between multiple interests, including some who are not rights holders, has apparently been abandoned. If a few thoughtful scholars such as Larry Lessig get caricatured in the process, well, what’s the harm?

But the final straw may be the Obama administration’s opposition to a proposal on copyright exceptions for the visually impaired. About 95 per cent of books are not available for blind or partially sighted readers. Some countries have exceptions in their laws which, very sensibly, condition the grant of the copyright monopoly on a (very) few public interest limitations, such as the right to make non-commercial versions of works one has legally purchased in order to make them accessible to the visually impaired. (For example, generating a machine-readable audio book, or a Braille version, from a legally purchased digital text.) The proposal would generalise and harmonise those exceptions. It is backed by a number of developing countries and opposed – quietly – by the US and most of the European Union. Hip-deep in a colossal market failure on a global scale, they say optimistically that the market will provide an acceptable solution, though there is overwhelming empirical evidence that it will not.

Why oppose this proposal? Scaremongering aside, there is no real threat to anyone’s business model here. But if one sees any limitation of the most extreme version of copyright as a dangerous and ideologically driven attack on property itself, well then, one must fight. This proposal represents the ideas that rights should have limits and that we should harmonise limitations and exceptions as well as rights themselves. It is that principle, the principle of balance, that must be resisted. Even if it puts one in the embarrassing position of – ever so pragmatically – sacrificing one’s blind citizens to an industry agenda. In a world where we have to deal with torture and climate change and the collapse of our economic system, this little piece of moral cowardice is not something many people are going to notice. But it leaves a nasty taste in the mouth, nonetheless.

James Boyle is a professor of law at Duke Law School. His most recent book is The Public Domain: Enclosing the Commons of the Mind.

The Public Domain wins Donald McGannon Award

James Boyle — Tue, 26 May 2009 19:06:41 +0000

I was zooming through my inbox in a deleting frenzy, discarding winsome offers from Russian ingenues, fabulous commercial opportunities in the Nigerian oil business and hundreds of prizes that I had apparently won without entering. The next e-mail was another “Congratulations — You have won..” and I nearly deleted it too. Luckily I didn’t because it was the announcement that The Public Domain had won the Donald McGannon Book Award for 2008. The Award goes to books in the field of communications policy, liberally construed. (The McGannon Center also listed Jonathan Zittrain’s excellent The Future of the Internet as “an honored book.”) Here are a few of the prior winners…

Daniel J. Solove, The Future of Reputation, Yochai Benkler, The Wealth of Networks, C. Edwin Baker, Media, Markets, and Democracy, Lawrence Lessig, Code and Other Laws of Cyberspace Janet Abbate, Inventing the Internet Whitfield Diffie and Susan Landau. Privacy on the Line, Tom Streeter, Selling the Air..

If you just bought the last 20 years of McGannon award winners, you’d have a really good library on communications policy. Being on that list is an honour.

Videos from Open Innovation Conference at NESTA

James Boyle — Tue, 26 May 2009 17:24:12 +0000

Britain’s National Endowment for Science, Technology and the Arts (NESTA) had a conference last week on open innovation in culture and science. I got to set the stage but the other talks… were far more interesting. My colleague Jennifer Jenkins led off the panel on Open Innovation in the Creative Industries — in which she gave a fascinating description of the ways in which creators in publishing, music and film are using Creative Commons licenses as part of their business plans. (The responses to her talk are hilarious.) John Wilbanks was inspiring as he described what Science Commons has done — and what it could do. And the panel on Open Innovation and science which featured Nobel Laureate, Sir John Sulston, is well worth watching.

What the “Information Superhighways” aren’t built of..

James Boyle — Wed, 22 Apr 2009 13:28:15 +0000

My latest article at the Financial Times makes the case that, when it comes to technology policy in the “stimulus package,” fetishism and reification rule the day…

We are now in the middle of what looks to be a pretty bad depression
– so bad, that no one seems to find humour in the metaphor war du jour:
the fact that politicians now spend their time boasting about the size
of their own ”stimulus packages” and mocking those of their rivals. ”Is
President Obama’s package big enough?” we are asked. From his smile at
the G20 meeting, he apparently thinks so. Where’s Freud when we need
him?

Beneath the war of metaphors lies a troubling ignorance.
It turns out that we don’t know very much about what kind of stimulus
spending works. Of course you can put money into pockets, and thence
into cash registers, merely by having people dig holes and fill them in
again. But we’d like those holes to be useful, to generate their own
productive return to society. And nothing symbolizes this productive
form of stimulus in the public debate better than highway building.
Build improved roads, goes the argument, and you not only put workers
back to work, you make commerce simpler, easier, more efficient. You
encourage economic growth. A dollar spent on this kind of stimulus can
actually yield… well, the economists differ, but more than a dollar
of return. Of course, this only works if you need the roads. Japan’s
absurd public works program over the last 15 years made that very
clear. Bridges to nowhere were everywhere.

Because politicians like to seem modern, they try to update the metaphor. What about the
”information superhighways” we were promised in the 90’s? Could these
be the freeways of the information age, the autobahn’s of e-commerce?
That sounds promising…

We see the economic advantages of a network — the lowering of
barriers to entry, dramatic improvements in information flow, lower
transaction costs — and we associate those advantages with the thing along
which the network’s bits flow. But here’s the problem. The information
superhighways of the mind are not just wires. (Though we surely need
the wires.) The container is not the thing contained.

SNIP

…. We can
study the reasons for the absolutely stunning success of the internet,
and try extend that success, that model of network design, into places
that it currently doesn’t reach. Yet those ”places” are as likely to be
fields of thought as fields in West Virginia. …Some scholars have been arguing that
the architecture of the internet, its embrace of openness as a design
principle, might revolutionize science if we could apply the same
principles there — if we could break down the legal and technical
barriers that prevent the efficient networking of state funded research
and data. Imagine a scientific research process that worked as
efficiently as the web does for buying shoes…

More here

(apologies for the broken links earlier… The FT is a wonderful paper but its digital publishing efforts are about at the level of Gutenberg. To get an article published with the links intact, the right title and a stable URL permalink is a trifecta of vanishingly small possibility. On the other hand, they allow me to put my articles up under CC licenses — and that makes all the difference.)

RSA Lecture & Podcast

James Boyle — Wed, 15 Apr 2009 13:52:01 +0000

Podcast here. Video below.

Kutiman, Spark & CBC

James Boyle — Wed, 08 Apr 2009 08:20:55 +0000

I had fun talking to Nora Young of CBC’s radio show Spark on a show that also featured supreme Remixer, Kutiman.

Duke U.P. Edition of Comic Book

James Boyle — Mon, 06 Apr 2009 23:59:29 +0000

You can see a slideshow of the new, expanded Duke University Press Edition of Bound by Law — my graphic novel introduction to fair use — here. There are new introductions by Davis Guggenheim, Oscar Award winning director of “An Inconvenient Truth” and by Cory Doctorow. You can buy it here. Or read the earlier version on Kindle.

CC By(e Bye)

James Boyle — Tue, 31 Mar 2009 19:05:42 +0000

(Reader Attention Conservation Warning…This is a self-indulgent post, written as a diary entry as much as anything else… If you want to know what Creative Commons is, you can read this.) Tomorrow I finish my year’s term as Creative Commons Board Chair and step down from the board… I am succeeded as Chair by Esther Wojcicki who is going to be fabulous. Her work as an award winning teacher and a journalist and her focus on making technology work for education are exactly what we need as an organization.

I have been a member of the board from the beginning. My e-mail folders have correspondence dating from 2001 when we thought it would be called “The IP Conservancy” (hardly a name to inspire excitement) and that it would sit on our computers and hold great works donated by public spirited authors and heirs, as well as a free-for-all potlatch donated by the community.

Little by little those ideas (and that name) disappeared, and the Creative Commons you know now appeared. The same e-mail history tells the story of the continual push to have a CC for Science — eventually founded by me, Hal Abelson and Eric Saltzman in 2004 — and to move CC more centrally into education. (I was one of the co-founders of ccLearn in 2007). At the beginning we dreamed, ambitiously, of having 10,000 digital artifacts under CC licenses. There are now more than 200 million. Through the process I got to work with astounding people. Larry Lessig, first of all, who is the true moving force behind CC. Larry invited me onto the board before there was an “it” to be on the board of, and is one of my dearest friends. Molly van Houweling, who was CC’s first leader, Glenn Brown, Diane Cabell, John Wilbanks, Mike Linksvayer, Ben Adida, Aaron Swartz, Mia Garlick… the list goes on and on; it would be Oscar-night long if I mentioned everyone — each one of them someone who at a particular moment did something without which the CC that exists now would not.

Then there is the CC board, with whom I shared fears, beers, triumphs, late night grant writing sessions, and laughs too many to count. Working with Mike Carroll, Hal Abelson and Eric Saltzman was a particular delight. [Vivid snapshots: Hal Abelson, one of the greatest computer scientists of his generation, proofreading the first CC website, line by line and link by link, like a high school intern. Laurie Racine, who heard a half-baked, back of the envelope pitch, and started the flow of money to make it happen. Mike Carroll frowning as he worked on the first draft of the first CC license -- our Jefferson. [;->] Glenn Brown smiling with relief as everyone (finally) started to dance at the David Byrne/Gilberto Gil concert. The first time I got yelled at by a collecting society rep. The first time we were mischaracterized in the press. The first sleepless night thinking about the budget.Being condemned because the licenses allowed too much choice.. and too little. (All experiences that were to be repeated.) The first grant I co-wrote that was funded. The 20th grant I co-wrote that wasn’t. Seeing MIT Open Courseware come out — and realizing with a gulp that we had provided a key part of the architecture for global open learning. The first time someone said “lets put this under a CC license” and everyone in the room nodded, not knowing I had any connection to the organization. One of the founders of Google, saying to me, without apparent irony, “well, you have such a strong brand…” People from 40 countries at an iCommons event – brilliant, accomplished people who were lawyers, academics, artists, judges — talking about CC as if it had always been there. Having a stranger explain CC to me. Michelle Thorne asking me about careers in open content.. I nearly chuckled, but she had the last laugh, she found one! The first time a collecting society rep suggested we could work together. The time a Nobel prize winner said “why doesn’t CC do something about this?” as if that were the most natural question in the world.]

And it meant I got to have friends around the world who put something of themselves into CC and changed it for the better — Joi Ito, our CEO, Paul Keller, Alek Tarkowski, Fred Benenson, Prodromos Tsiavos, Melanie dulong DeRosnay, Andrés Guadamuz, Tomislav Medak, Bernt Hugenholtz, Brian Fitzgerald, the whole of the CCi network… I could just go on mentioning names but I’d be doing it more to spur my own memories than to communicate — still that is a function of blogs too. Anyway, this unseemly display of nostalgia and the rehearsal of so many friends’ names serves only to say how very proud I am to have been a part of CC and how excited I am for its future. We will be a central part of the movement that changes the way science is done, I think — the current inefficiencies are too great and the potential gain too enormous to let the chance slide. I think open education is an idea which makes too much sense to be resisted (which is not to say it won’t be.) And the idea of building a global creative commons is just as inspiring as its always been.

Still, its been a long time and after that many years, anyone deserves a bit of a rest and a change. With the creation of Science Commons and ccLearn, and the transition from Larry’s leadership over, I feel as if I’ve already accomplished a lot of what I can contribute. I am not going away of course. I will continue to be a strong supporter of CC and particularly of Science Commons — it needs your help, give now! I going to be doing much more work with the organization I set up at Duke, the Center for the Study of the Public Domain, including finishing a comic book on the history of music and working with the Center for Public Genomics. I will be serving as a board member on the Public Library of Science — believing that there are lots of options for collaboration down the line. And I will be looking on with interest, awe (and occasional total, flummoxed confusion — remember, its Creative Commons we are talking about here!) to see what the future brings. Keep in touch. I will.