Now we just need a charity bracelet

... a nice puce-colored one with little suckers.

If the endless multiplication of memorial ribbons is getting you down, or if the lobbyization of American politics is driving you nuts, the campaign to save the Pacific Northwest Tree Octopus may just be the one that takes you over the top.

Link (thanks to S.)

The ever-threatened lecture

Storm clouds are gathering over university lecture theaters. Course materials are available online (eg MIT’s OpenCourseWare), and students are increasingly learning on the web. If everything you need is online, why sit in big room with two hundred sleepy colleagues at some ungodly early hour?

The economics are also ominous. Jonathan Aronson was explaining the financial side of universities to me the other day: the key, as I understand it, is short-changing freshmen and sophomores in order to teach seniors and graduate students. Professors spend very few hours per student on first- and second-years, so that they can give personal attention to more advanced students. The big bucks for Departments are in teaching large classes, so they pack them in tight.

This feels like a raw deal if you’re a freshman. Students have found an alternative. More and more undergraduates are enjoying the better student/teacher ratios in community colleges for a couple of years, and then transferring back to universities. If freshman enrollment tanks, university finances crumble.

That lectures are old-fashioned and that students dislike them is not a new insight; the dons in Cambridge figured this out in the middle of the 16th Century. In his wonderful imagined biography of Christopher Marlowe, Rodney Bolt writes

“Attitudes to study underwent a radical change in the years before Kit arrived [around 1580]. Instead of merely lamenting the fact that lectures were so poorly attended, the authorities addressed themselves to the reason for the decline, and realized (about 100 years after the event) that the accessibility of printed books meant that students were no longer reliant on lectures for basic information. This revelation led to a new approach in which college tutors (rather than lectures) played an increasingly important role in a student’s education …” [1]

Attendance at lectures is optional in Oxford and Cambridge to this day. The real teaching is done in one-on-few tutorials. It’s expensive, though, and few institutions can afford it – hence the large lecture theaters in most places.

The boom in online tutoring may bring the costs down. A Google search on the term “online tutoring” turned up more than 700,000 hits today. The kinks are being worked out with high school students and language learners. Global communications will push down the prices tutors can charge. Voice over IP will be key. Face-to-face interaction is impossible to replicate, but everyone has experienced the deep emotional engagement one can get with a telephone conversation; VOIP can make the connection even deeper by offering better-than-phone sound audio.

What remains of the university? The place itself and the students, I think. Cambridge didn’t dissolve into tutors scattered around the town, receiving students in their homes; the community of teachers and students living together continued. Though one can now network online as well as in the pub or common room, students and their parents will continue to pay over the odds for a place-centered, face-to-face experience and the social network it brings.

The future of professors and teaching assistants is less clear. Some resident scholars and a few academic celebrities will survive, and advanced teaching will be face-to-face. However, lecturing and entry-level tutoring will be outsourced off-campus. We may expect a painful transition a few decades as universities are hollowed out into a bi-modal age distribution: young students and old professors, with less and less on-campus work for graduate students and associate professors.

Replacing the old professors when they retire will be a challenge, since the young talent will have gone off to industry. There won’t be successors with academic track records ready to take over. Perhaps former post-grads will be lured back from commerce in their late forties to teach the next generation, thus providing a twist to the old Shavian quip:

Those who can, do. Those who have done, teach.

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[1] Rodney Bolt, History Play: The Lives and Afterlife of Christopher Marlowe, p 50

Why you should care about CPCM

The EFF critique of the proposed standards for copy protection in European digital TV systems exemplifies the conflict that arises when the husk of stuff is sloughed off information goods.

EFF position

The EFF rejects the downstream control of content that these standards would give entertainment companies. For example, the proposed technology would determine which shows can be copied, which devices can be used for copying, and who would be able to share copies with whom.

The EFF motivates its objections in various ways:

1. The user "owns" the content once it has been delivered and should be able to decide how to dispose of it


2. Customary rights on fair use of content will be infringed, harming society in a variety of ways


3. Restricted outputs would limit innovation in the equipment market


4. A veto on allowed devices would crimp the Open Source movement

I'll focus on the first one, since it's at the heart of the transition to digital media.

I imagine content producers have always believed that they continue own the content even after it’s sold (or licensed, rather, as they'd insist). However, there was no need to press the issue in the analog era, since lossy copying meant that quality degraded so rapidly that massive illegal appropriation of their property wasn't a significant business risk.

The difference with Digital

Digital media is reproducible perfectly and infinitely, at minimal cost. Producers worry that if they don’t control its downstream distribution, content will show up as a perfect but free copy, and they will no longer be able to make money from it. The product in question is now much closer to the ideal knowledge good; it's no longer packaged in a carrier that degrades over time. (In economic terms: Content as a knowledge good is, in principle, a non-rival good, but when packaged in an analog distribution medium it becomes effectively rivalrous, and thus much easier to fit into existing economic structures.)

The content companies are betting – hoping! – that technology will save them. However, for the solution to succeed the controlling technology has to be everywhere content is played, and has to be the only way content can be played.

Such centralized control is anathema to the advocates of a new digital content regime. The paradigm of their daily lives is the mash-up, open Internet: building new services by combining existing ones in new ways (eg housingmaps.com, which combines Craig’s List with Google Maps), and getting under the hood to tweak code if they want to add their own features (eg Linux).

The crux

It’s more than just a clash of cultures, though. The argument matters because it resonates with a shift in technology that has flecked open this question: How should intellectual property be managed when it is no longer wrapped in “stuff” which obscures its fundamental difference from conventional physical goods? As more and more knowledge is represented in digital form (examples below), and as the ratio of knowledge to stuff in our products increases, it will affect every business, and every citizen.

Forthcoming attractions

Phones are much smarter than they used to be (more knowledge), not to mention smaller (less stuff). Phone companies didn’t used to worry much about what I did with a phone once I bought it, because I couldn’t do much. Now that one can (in theory) make calls over a Wi-Fi network that the phone company can’t monetize, they care a lot more, and are asserting control over the software that’s allowed on their phones.

Cars are much smarter, too. It comes as no surprise that people are increasingly unable to choose who maintains their vehicles, since manufacturers only give their dealerships the requisite electronic diagnostic equipment. Say goodbye to your friendly independent mechanic… Changing the bits has become more important than changing the oil, and the manufacturers care about the bits.

Consultants and professionals are also “knowledge wrapped in stuff”. The Stuff is human flesh, and the Knowledge is what they learnt in Law School or Med School or B-school, and the School of Hard Knocks. While the knowledge is non-rivalrous, acquiring and distributing it via human carriers (the ultimate analog distribution medium :-) makes it effectively rivalrous: if I’m using the consultant, you can’t have her. (A Washington DC ploy much-used by incumbent industries: put all the top law firms on retainer so that they can’t lobby for insurgent industries.) As such knowledge is increasing – though of course still imperfectly – represented in software, similar fights will arise over the control that digital consultants have over the downstream use of their expertise algorithms.

Class, capitalism and the creative commons

Raymond Williams' wonderful little book Keywords: A Vocabulary of Culture and Society opened my eyes to the language of class struggle that’s implicit in the fight over digital technologies. As an example, let’s take the term “Creative Commons”.

The terms common and commons had a very early use (16th Century) as an indicator of social division, that is, the common people as contrasted with lords and nobility. Since the Left sees itself as defending ordinary folk, and the Right is aligned with the elites, it’s no surprise to see an association between left-wing politics, the enclosure of the commons, and the needs of the “digital revolution”:

The re-election of George W. Bush makes it abundantly clear that a fierce new round of pillage and plunder is about to begin. Over the next four years, market enclosure will be taken to new extremes -- oil drilling in the Arctic wilderness, more privatization of government drug research, giveaways of the broadcast airwaves, the shrinking of the public domain, among many others. (David Bollier, The Commons as a Movement.)

This analysis also shows up in specific policy arguments: Yochai Benkler conjures up enclosure in a discussion of the spectrum commons and intellectual property (see e.g. The commons as a neglected factor of information policy) and The New America Foundation, a left-wing think tank, has been active on the topic of the spectrum commons.

In such a context, the notion of creativity also has strong class war connotations. Williams gives an excerpt from Thomas Hodgskin’s Labor Defended against the Claims of Capital (1825) in his discussion of the term capitalism in Keywords (op cit.) which argues that “all the capitalists of Europe, with all their circulating capital, cannot of themselves supply a single week’s food and clothing”, and “betwixt him who produces food and him who uses them, in steps the capitalist, who neither makes nor uses them and appropriates to himself the produce of both”. By implication, the working people are the creative ones, and the capitalists are parasites. In the discussion of class, Williams quotes O’Brien in the Poor Man’s Guardian (19 Oct 1833) writing about establishing “for the productive classes a complete dominion over the fruits of the own industry” – that could’ve been Richard Stallman talking.

Last but not least: it should come as no surprise that the entrepreneurial class sees some of these trends as a threat as grave as communism, or that activists have taken on the mantle of “commonists” (sic) with pride (Google bibliography).

These political connotations in the term “creative commons” are surely intentional, and accurate to the extent that we’re seeing a political struggle over how to structure an economic system. However, the language can become misleading because many of the semantic associations are out of date. The issues at play today are not the stuff of industrial capitalism. The “capitalists” no longer control the means of production, given that the means of production in a knowledge economy is an educated mind plugged into a network of common (in the sense of shared) interest. Since many more elements of production are non-rival, it’s no longer the zero sum fight over rival resources that it used to be.

It may still be Us vs. Them, as it is in any fight, but it would be wrong to assume that it’s that Us and Them are the same social constructs (workers, capitalists) as they were in the 19th Century.

Trading apples and ideas

I came across this George Bernard Shaw quote in the proceedings of the zemos98 conference (it seems to be a Spanish cultural organization with a "Free Stuff" bent; thanks to Elastico for the link):

"If you have an apple and I have an apple and we exchange these apples then you
and I will still each have one apple. But if you have an idea and I have an idea
and we exchange these ideas, then each of us will have two ideas. "

This jumped out at me since I've been trying to wrap my head around the notion of Comparative Advantage. The quote suggests to me (and I think the Free Stuff community sometimes makes this case) that trade in knowledge goods is intrinsically different from trade in tangible goods.

The goods themselves are obviously different: non-rival vs. rival, for example, and with differences in the cost of marginal production. But the production of both goods consumes rival resources, whether a creator's time or an aquifer's water, and the value placed on the both types of goods will be a function of scarcity. Therefore, while one can expect some differences in trade dynamics based on the properties of information goods, the essentials will remain.

If that's the case, one would expect that different countries would trade in different kinds of information good, since they have comparative advantage in their production. There are signs of such specialization; Norway is, I'm told, the world leader in seismic analysis software as a result of their North Sea oil exploration expertise.

Forget about software, go run a business

The blogger Mini-Microsoft is probably not the only employee who’s riled up by Business Week’s report of a new pay scheme which will supposedly go into effect at Microsoft this Fall:

“If they meet incentive goals, the 120 or so vice-presidents will receive an eye-popping $1 million in salary a year, and general managers, the next level down, will get $350,000 to $550,000, according to a high-ranking source. But the rest of the staff is paid at market rates.”

This doesn’t surprise me (assuming it’s true) since a flat stock price and competitive recruiting by competitors encourages exceptional rewards.  It would be disconcerting, though, if the exaggerated rewards only go to senior managers, as the report implies, and not to top engineering talent as well. The dramatic performance disparities in software productivity are well known; see my entry on Engineering jobs, which ruminates on the fact that tech companies can never get enough of the very best people, while the rest of us struggle to get by.

But then again… I’ve been learning about the “Law” of Comparative Advantage, which indicates that players which produce multiple goods are better off if they trade with each other, with each specializing in the good which it produces most efficiently.  India and China probably have a comparative advantage in writing software vis a vis the US, while the US has a comparative advantage in entrepreneurship and finance.  

Applying Comparative Advantage to the software business – in a rather cavalier way, I admit – suggests that US companies will specialize in business management, while India and China will write the software.  This would mean American managers and Asian developers.

(Note: I’m not saying that India and China have an absolute advantage in software; the law of comparative advantage only requires that they’re relatively better at software than they are at finance.  They could be worse than the US at both, and it would still be to both sides’ advantage to specialize in the way I’ve indicated. In this example: If American tech managers are three times as good as Asian managers, and American software devs are only twice as good as Asian devs, then you’ll end up with American managers and Asian devs. However, invoking Comparative Advantage in the way I’ve done is a stretch, since its simple proofs focus on labor productivity in widgets/hour, which really doesn’t apply in software.)  

Good news for Microsoft VPs and GMs, but not for Redmond developers.

Social conservatives vs. Market conservatives

The second term of a US President whose party controls the US Congress is always fun to watch.  The easy wins, the ones where all loyalists agree, have been won; items  remaining on the agenda are potentially divisive.

The strain is beginning to show at the FCC, for example.  Kevin Martin, the President’s loyal Chairman, intends to limit “indecency” on cable TV.  According to Slate, “he has been quietly meeting with religious activists and industry leaders to organize a push for new standards for broadcast, cable and satellite television”.  This is family values politics, one of the mainstays of the Republican party.

The other mainstay is laissez faire markets, and the business lobby is beginning to grumble.  Adam Thierer worries on the PFF blog that Chairman Martin & Co’s attempts to rethink regulation in the context of media convergence “level the playing field in the direction of less freedom of speech instead of more.” He continues, “The problem with this "regulate up" solution to the level playing field problem is that it means almost any type of speech or media outlet in the future will be fair game for regulators.”  Market conservatives hate few things more (taxes, say) than government regulation of industry.

More contests are coming between the social and fiscal wings of the Republican party.  One can only achieve far-reaching social goals, eg on abortion, speech content, and codes of behavior, through far-reaching regulation.  However, such regulation goes against the grain for small-government conservatives.  A likely flash-point: States’ rights.  Republicans have for historical reasons (eg the New Deal) resented federal intrusion in states’ autonomy to act in ways conservatives prefer.  However, this preference may well fade once the Right wants to impose its vision on the whole country, just as the Left did 80 years ago.    

Theory, practice, and the stories that connect them

I’ve just returned from an introductory training course in vipassana (vi-PAH-shu-na) meditation, and it’s helped me tease apart the distinction between theory and practice.  

The course teaches a technique which, it is said, can be used by anyone regardless of their religion or beliefs. While most of the course was devoted to the mechanics of meditation, the evening lecture was couched in Buddhist terms.  For a while I found some tension between the ostensibly value-free technique, and the extensive philosophical framework in which it was placed. If this were just a technique, why then all the Pali words and extensive taxonomies?

I found it helped to distinguish three distinct topics: (1) the practical technique, (2) the theory that explains how and why the technique works, and (3) heuristics derived from the theory to support practitioners in the technique.

Since I’m a complete novice, the following example is almost certainly inaccurate, but is hopefully still illustrative: (1) Students are taught how to attend to the sensations (or lack of sensations) on the surface of the body.  (2) The theory describes the sensations in terms of a four-fold sequence in which consciousness leads to perception, then to sensation, and finally to reaction. (3) Students are encouraged to maintain their equanimity in the face of discomfort by the theory’s explanation of how sensations which are ignored will lead to a reduction in deep-rooted misery.  The application of the theory in this heuristic makes the pain bearable because it makes it meaningful; but the pain borne for any other reason would have a similarly beneficial effect.

Since the theory merely sets out to explain the technique, the truth-value of the theory doesn’t affect the efficacy of the practice.  The theory could be wrong, and the technique would still work. There might also be other theories that are equally or more plausible explanations of the success of the practice; for example, one might be able to construct a neuro-physiological rationale for the effectiveness of meditation that would appeal more than Buddhist spirituality to a hard-headed scientist.  After all, plausibility is in the eye of the beholder.

However, different theories, even if equivalent in explanatory power, will lead to different tips-and-tricks to support the practice.  The heuristics that result from different theories may be more or less effective in advancing the practice.  Their effectiveness will vary by their sophistication, and plausibility to a particular person.  Buddhism has had 25 centuries to hone its stories, but most Westerners find the Buddhist cultural context to be alien.

Technique and theory are more closely linked than this superficial categorization suggests, of course. There is a feedback loop; a technique can lead to a theory, which then suggests further techniques which, if effective, could require extensions to the theory, more new techniques, etc.  The model constrains the kinds of practice which are discoverable and observable.  The practicalities of technique will lead to emphasis of certain parts of the theory over others, and thus constrains the model. The heuristics are the bonds which tie the two together.

Theory and technique develop jointly. Thus, an explanatory theory isn’t simply a replaceable module which can be swapped out without loss for another theory – though in practice one may use other theories (eg neurophysiology) to explain a practice in part.  In this sense, vipassana’s claim to be simply a technique which can be practiced without committing to a theory/philosophy is an over-statement, and Buddhism’s claim to be non-sectarian is a stretch.

On a related note, this taxonomy helps one distinguish words used as descriptions vs. as explanations.  For example, after some practice it is said that vipassana practitioners can experience a “vibration” over part or all of their body.  This is a description of the sensation. However, the term is also taken as an explanation of the source of the sensation, eg the very rapid coming-into-being and disappearance of sensations; in some cases, this thinking is extended to recruit quantum mechanics to justify the theory.  The description relates to the practicalities of the technique; the explanation relates to the theory, and may or may not be plausible.

The three-fold distinction applies in the sciences, of course, and can also be used to analyze other concerns such as software development practices.  There are at least two techniques which are successful in creating large complex code bases: proprietary software development within a firm, where coordination happens by fiat backed up by organizational authority; and an open source approach where development is distributed and coordination is more reputation-based.  Each has its own theory (myths?) of why its technique works: in the proprietary case it’s traditional economics and organizational psychology, where innovation is considered to be scarce and chaos the natural state; in the open source case it’s the “economics of abundance”, theories of altruism, and a world where innovation happens spontaneously.  Either or both theories may be wrong; that doesn’t vitiate their respective practices.  Both schools are tied to their theories by the heuristics and lore that has grown up in gap between the theory and the practice.

In all these areas – Buddhist meditation, science, and software development – weakness of a model should not blind one to the effectiveness of a practice.  One may find the motivating theories implausible or distasteful, but that doesn’t mean that the technique doesn’t work.
    

Off-line for a while

I'll going to be incommunicado for the next couple of weeks. Posting, such as it is, will resume once I'm back the week of 29 August.

Have a great summer!

From copyfight to copytruce

There is middle ground between the competing principles that I highlighted in King Content vs. the Copyfighters: content owners’ right to sell bits, and consumers’ rights to Fair Use and First Sale. The "Digital Copyright Principles" are a basis for detente between the combatants:

Content owners have the right to monetize their property by selling it. While long admitted by many in the copyfight, this will be hard for some partisans to to concede.

Consumers and secondary content producers have a right to Fair Use of published content, which technology vendors will implement in their DRM solutions.

If there isn't an accomodation, the content industry will fight a long but doomed rear-guard action against a new system of intellectual property. For their part, copyfighters will rage against the machine for years, with little to show for it.

I’m suggesting that Copyfighters:

• Give up the notion of First Sale as a consumer right, and recognize that licenses are an acceptable way to make money from digital goods
• Stop demonizing DRM

In return, industry would:

• Implement Fair Use in DRM. This will require a significant development effort. It will also be hard in legal terms, since Fair Use precendents may be contradictory.
• Address copyright terms – the current approach of “Don’t let Mickey Die!” is commercially reasonable in the short term, but destructive to itsability to defend the social contract around IPR in the long term.

The goal would be to go from “copyfight” to “copytruce”.

A test of the détente will be whether the two sides can agree on a rewrite of the DMCA. Once that’s done, the two sides should rework the badly broken copyright regime. Some industry players have acknowledged flaws in the software patent regime by taking an “it’s necessary, but we know it’s broken, and here’s how to fix it” approach; the same is needed for copyright.

The lack of a counter-party on the copyfight side makes negotiations tricky; who does industry talk to? It will be up to figures in the community like Larry Lessig and Cory Doctorow to take a lead. Provocations will be inevitable; one can never stop freelancers from taking radical action to scuttle any deal they don’t like. However, the Brits pulled this off with the IRA in Northern Ireland over the last decade or so, so it’s doable.

Doable, but not easy. Intangibles are hard for humans to deal with. There is little precedent, and we may just not be wired with good intuitions about digital goods. Abstract concepts can also generate the worst kind of conflict - take all the bloodletting in the Reformation around such abstractions as predestination vs. justification through works.

The politics are not conducive to a legislative solution. In the US, the White House doesn't much care about the issue, and certainly doesn't care about the players. Let's check of the list: Copyfighters - Lefties; Hollywood - Lefties; Silicon Valley - Lefties. Citizens' access to content is perhaps a more active issue in Europe, but since entertainment regulation is a national prerogative, the Commission may opt not to intervene.

2007 looks like a pivotal year. There will be a new administration in the White House, and key ICT directives will be up for renewal in Europe. Let's lay the groundwork, in terms of legal theory, technology and personal relationships, in the next 18 months.

Cheap teencare: a man bites dog story

Externalities are usually exemplified by tales of a company forcing citizens to bear some of its costs, for example, a polluter dumping its waste into a river and leaving it to the community to pay for clean-up. In a role reversal, many parents are dumping their teens at the mall rather than bear the burden of looking after the little darlings themselves.

The Christian Scientist Monitor reports [1] that malls are attempting to cut back on rowdy behavior and loitering, which they believe leads to lost sales, by enforcing policies that require teens to be accompanied by parents after certain hours.

From the Monitor: "Mall managers say that packs of teens deter families from choosing the mall as their Friday night outing. Many complain they have become de facto baby sitters. "

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[1] At shopping malls, teens' hanging out is wearing thin, Sara B. Miller, Christian Science Monitor, August 11, 2005, http://search.csmonitor.com/search_content/0811/p01s01-ussc.html

If you don't care what something costs, the price goes up

Frank Michael Russel in today's Merc news round-up notes that the price of crude oil has reached $64. He notes that demand is a huge factor: "Investors are noticing that higher gasoline prices are having little effect on driving habits." Until demand drops - that is, until people start driving less because gas costs more - the price will stay high.

I'm just surprised that this reason hasn't been given more often for the high price of oil. It's not something that sits well with many Americans; cheap gasoline has become a right, not a wind-fall. SUV sales are slowing, but not very quickly. And the Chinese are just beginning to get the driving habit.

I imagine similar price insensitivity has kept prices for cable TV and broadband access high, too - not to mention credit card debt.

Gownie glibido

LangMaker's wonderful page Neologisms A-Z has an endless supply of this kind of magic:

aalst, aasleagh, abajado, abalemma, abbrevolongation, aberbeeg, abercrave, aberition, abert
confuzzled, cong, conjugete, conlang, conlangorate, conlex, conmoralize, conquesor, constroy
gloopgleep, glottomania, glottopoietics, glug, goable, go-dog-go, goile, golant, goldensprog

The site also offers endless neographies, from CyrDaiLue, which uses Cyrillic script to express the Thai Lue vowel system, to Glaitha-B, which is used by fairies to write Mikiana

It reminds me that the "fine" in Fine Art is derived from the Latin "finis", meaning that it is an end in itself; it has no purpose beyond itself.

Ah yes, in case you were wondering:

• gownie: A native of a college town who more closely resembles in behaviour and interests one associated with the university, from the word townie and the expression town/gown, with reference to the cultural divide found in college towns separating academia from native life
• glibido: All talk and no action, coined in the 2001 Washington Post's Style Invitational: blend of libido and glib

King Content vs. the Copyfighters

I’m new to Copyfight, and I found Scott Kleper’s Introduction to Copyfighting a useful primer. Kleper defines the premises of copyfight by stating two complementary principles:

1. “Copyfighters aren’t saying that information should be free.” I’ll call this Selling Bits, which is shorthand for the right that owners of digital information have to make money selling their products in any way they choose.
2. “We are saying that as consumers of media (film, television, software, literature, etc.) we have certain rights that we would like to protect, [including] Fair Use [and] First Sale.” I’ll call this Fair & First. (Let’s leave aside the fine distinction that Fair Use is not a right but a defense against claims of infringement, and the fact that First Sale case law is murky at best. )

These two principles are the heart of the matter, not least because they are the paragraphs Cory Doctorow highlights in his endorsement of Kleper’s statement.

The hard question is whether both principles can be satisfied simultaneously for digital media. The very existence of the copyfight suggests that they cannot, since it is a struggle over which right trumps the other.

Incumbent content owners and their technology suppliers (“King Content”, for short) argue that DRM is the only way to make money from content. In order to implement DRM, they do not allow Fair Use (since copying any part allows a bad actor to copy and then infinitely reproduce the whole), and prevent First Use redistribution (since digital redistribution without limit means the value of the first copy is zero) by only licensing their goods, and not selling them. (In the interests of transparency: I used to work for King Content.)

The Copyfighters are inventing new business models that uphold Fair & First, since the existing ones which satisfy this principle don’t work very well. The examples so far are not conclusive. Kleper avers that there’s a wealth of content available under the Creative Commons license (CC); but even if one stipulates that volume of content is significant, that says nothing about profitability. Even CC itself allows producers to specify which uses are not allowed – but without DRM, or an equivalent technology, how are those rights to be enforced? And speaking of the Creative Commons Founders’ Copyright, Tim O’Reilly says “It lets publishers like us free up great books after they've lost profitability,” which implies that being free and being profitable are at odds.

The Tussle

Since both principles can’t be satisfied simultaneously, we have two camps, each advancing the primacy of their preferred choice: King Content vs. the Copyfighters. Each side concedes that both principles are important – but not equally important. King Content attempts to simulate some Fair & First functionality, though not at the expense of monetization; and the Copyfighters advance cases for monetization, though not at the expense of Fair Use and First Sale.

It’s a contest on many levels: insurgents vs. incumbents, paradigm shifters vs. the shiftees, and fragmentation vs. integration. The insurgents exalt the diversity and recombinant vitality of the web, and are betting that a new content consumption paradigm will inevitably follow. The incumbents want to keep making money with the least possible disruption; they support the status quo. Since scarcity is a precondition for value and hence profitability, the incumbents want to control as much of the value chain as possible – they want a closed, integrated end-to-end solution, which disgusts the insurgents.

Have no doubt, this is a political struggle. We’re talking about a shift in technology paradigm, which the Copyfighters want to convert into a shift in legal paradigms. If they succeed, it will lead to a shift in business power structures. This is a scary prospect for King Content – though as the Betamax case shows, the outcome could in fact be very profitable for the incumbents. The Copyfighters have a philosophical fervor that reminds me of the story John Markoff tells of the way the Sixties laid the foundation for the PC revolution in his new book, What the Dormouse Said.

In the court of public opinion, it becomes a question of who bears the burden of proof. Should the Copyfighters demonstrate that, and how, both principles can hold at once, or should King Content prove that they can’t? If both can’t hold, should King Content prove that Selling Bits trumps Fair & First, or do the Copyfighters have to establish the reverse?

Put another way: Is there a problem? Who’s problem is it? And who’s responsible for solving it?

At the moment each side is trumpeting the merits of its preferred principle. While Copyfighters mostly care about threat to Fair & First, their opponents see that as a threat to selling bits, since they can’t imagine of a viable business alternative. Both sides feel threatened – hence the passion.

Political skirmishing is well under way. The Digital Millennium Copyright Act (DMCA) limits one’s ability to obtain Fair Use by hacking content protection, on the basis that Selling Bits comes first.

Digital Rights Management

DRM is the Copyfighter’s Grendel. It is the mechanism King Content has chosen to use to charge for its product, and it is antithetical to Fair & First. The arguments against it fall into distinct (though often conflated) categories. DRM is said to be:

1. Inconvenient
2. Impractical
3. Counter-productive
4. Immoral

One of the most spirited cases against DRM can be found in Cory Doctorow’s talk at Microsoft Research in June 2004. He argues that DRM systems don’t work (= impractical); are bad for artists, for business in general, and for Microsoft in particular (= counter-productive); and are bad for society (= immoral). Doctorow, Kleper et al. always provide entertaining anecdotes, including the obligatory one about not being to tape from a DVD, about how infuriating DRM can be in practice (= inconvenient).

The arguments play different roles. If any of the first three are correct, business logic would dictate that King Content should change his behavior. However, neither people nor companies are logical… Given how entrenched positions have become, it’ll be difficult for industry to concede objections One through Three publicly if they turn out to be true. Hence the copyfight’s need for the fourth objection on moral grounds. Copyfighters have to make the political argument that even if DRM were to be convenient, practicable and productive, it is still to the detriment of society.

King Content cannot avoid the moral – that is, political – fight even if it wanted to, since the industry also needs political change. I don’t have a problem with Hollywood and Co stipulating whatever legal business terms they choose for their products. (Some in the copyfight community might disagree, or mightargue that some terms which are legal today shouldn’t be.) If Content’s offer is inconvenient or impractical, customers will spurn it and turn to the alternatives. If the alternative is legal and viable, and the Copyfighters are working to construct such a world, then let the best solution win. But since we’re dealing with new technologies here, legacy legislation won't always fit. King Content will need new law, as it did with DMCA. The debate then shifts from technical to moral ground, and a negotiation about the greater good. The Grokster case postponed industry’s need for new legislation, but cannot defer it indefinitely.

Denial

Both sides are in denial. While the Copyfighters profess to support the selling of bits, the examples I’ve seen where both of Kleper’s conditions are satisfied are anecdotal at best, though good work is emerging on the related topic of Open Source: see eg Perens on the economics of Open Source, and Steven Weber's book The Success of Open Source. Even if the Copyfighters can demonstrate that media in the new world are Free as in Speech, not Free as in Beer, they will still face indefinite trench warfare with King Content unless they can also show the incumbents a viable alternative to their current models. Right now they’re like the old-timer telling someone looking for directions that “It’s quite simple, really, but I wouldn’t start from here.”

It’s a favorite argument of Copyfighters that Bad Actors aren’t their problem. There will always be hackers, it is said (the Darknet paper is invariably invoked here), but most people are good, honest folk. Good, honest folk deserve Fair & First; tough luck on King Content if someone takes advantage of it to squeeze profits. In fact, the Copyfighters argue that there won’t be a squeeze. The folk who work for King Content, though, have a fiduciary duty to protect their business, and they’re still convinced that Bad Actors will suck out all their profits if Fair & First is applied the way Copyfighters want.

If industry has a failed business model, it’s not only its problem – it’s the Copyfighters’ problem, too. Without it, the rebels will only reach the sunny uplands of digital utopia over the cold dead bodies of today’s incumbents. That would be a long and bloody fight.

King Content, in turn, is suffering from “copyfright”. The industry is working hard to maintain the old model using new technologies, and is using legislation and litigation wherever possible to keep the market within the bounds that it’s comfortable with. There’s a resonance between King Content and King Canute, though with a notable difference: Canute was making the point that the sea cannot be held back, not trying to stop it.

The industry isn’t helped by the fact it’s in a “DRM Winter”, but can’t admit it. Like the AI Winter, great things were promised for DRM, but haven’t been delivered. The problem as stated is simply too hard to solve. In the end, many of the technologies AI researchers developed did come to market, but with little fanfare. Similarly, DRM technology will play a useful commercial role however the fight turns out. However, King Content denies the need for a Plan B; it’s DRM (in all its glory) or bust.

Outcomes

Copyright is a socially negotiated balance between content creators and consumers. “Copyfight” is the latest round in this tussle. At its simplest, there are three possible outcomes:

1. King Content wins
2. The Copyfighters win
3. There’s a negotiated settlement

The rebels are looking for a win, but since they’re the underdogs, they would probably settle for draw. The industry hasn’t thought seriously about what an accommodation might look like; it seems too awful to contemplate. It’s not illogical: for King Content, a draw is as bad as a loss, since it changes industry dynamics – not to mention the unacceptable loss of face if the promised DReaM doesn’t come true. However, a mixed world is the most likely outcome. I’ll explore the shape of a Content/Copyfight coexistence in a subsequent post.

Faster, cheaper, open-er

Today's news that FCC Chairman Kevin Martin is trying to persuade one of the Democrat Commissioners to lift Title II requirements on telcos' broadband offerings provides an opening for setting a precedent that could help ensure that the broadband Internet is open to customer choice.

The Left likes network neutrality. The telcos (eg Verizon) are willing to implement Chairman Powell's Internet Freedoms. The cablecos are less willing to say the least, particularly in the light of the Brand X ruling - but the Chairman needs a vote. A deal could signal Congressional Republicans about the importance of the Internet Freedoms.

It's a necessary, but not sufficient, step to encourage innovation and strengthen the Internet. Since it all costs money, one needs four parallel tracks:

1. Require "basic" open Internet access, but allow netops to discriminate among content providers for the rest
2. Subsidize rural broadband build-out
3. Support integrated rural development strategies in preference to agriculture subsidies.
4. Hold the line against content regulation on the Internet, but keep an open mind about taxation.

The key issue is to make sure there is fast, affordable, open access for all.

• Fast: There is no hard-and-fast definition of "broadband". Faster is simply better. At the moment, tens of Mbps seems to be the reasonable limit in urban areas, but that's out of reach for most Americans, even those in metros.
• Affordable: There's no point having 25 Mbps service if it costs $80/month. Fast broadband in Korea is around $30/month, but that's with a big subsidy. Competition (where you have competition) will push prices down.
• Open: The consumer Internet flourished as a result of its openness, which is the upshot of the common carriage status of modem calls over POTS. As everybody knows, that's not the case over cable today, and won't be for DSL once the Telecom Act rewrite gets done - unless Congress ensures it.

Remember "Faster, better, cheaper, pick two?" Network operators ("netops", for short: cablecos and telcos, mainly) argue reasonably that building a fast network takes a lot of investment. If service is going to be affordable, they contend, they need a cut of the profits content providers generate over their wires. This goes against "open"; while big players like Sony, Microsoft, Disney etc. may well be able to pay the toll, innovative small outfits won't be able to sustain the overhead.

The mythical "third pipe" isn't in the offing. Wireless broadband will help in rural areas, but will never be a viable competitor to the wireline players. Wireless just doesn't have enough capacity. Every wire owner is essentially their own FCC - they the entire electromagnetic spectrum at their disposal in the wire. Wireless will always have just tiny slivers in comparison. We're stuck with a duopoly in the US, and it will have to be watched carefully.

The four prongs work this way:

First, find a mid-point between "no carriage obligations" (Title I information service) and "common carriage" (Title II telecommunications service) that advances openness while allowing netops to recoup their investments by milking content owners who want premium service. There needs to be (a) a requirement to provide basic Internet access with no strings attached, with (b) the freedom for netops to to offer more, and charge more, for higher quality access. "Basic" will be like basic cable; part of the network's capacity to which the Internet Freedoms will apply.

Second, find a USF-like mechanism to subsidize the build-out of rural broadband while minimizing structurally distorting hand-outs to rural telco monopolies. I'm in favor of a scheme where subsidy is tied to customer preference. Since one has to handle both operating expenses (easy with per-customer payments) and capital expenses (hard), you'll probably end up with a long-term averaging rather than a per-year pay-out.

Third, reorganize funding for rural areas away from agricultural subsidies to large farmers, and towards development assistance to support local entrepreneurs. The broadband loan program is a possible approach, but I hear it's going down in the budget cuts. The Bread for the World Institute outlines the dynamic of rural development in his 2005 Hunger Report.

Fourth, and changing gears away from infrastructure, take a hands-off posture on content regulation. There is going to be increasing pressure to apply broadcast obscenity regulation to new media. The cable industry has successfully averted that requirement on their pipe by arguing that it's not a public asset, but once you add in Hollywood's worries about losing control over their IPR and worries about the security implications of peer-to-peer technologies, the cards are thrown into the air. I think it's premature to think about clamping down on content that flows over the web. However, and this gets us back to $$, I think the whole approach of "don't tax the Internet" is a pipe dream. I'm not advocating special taxes on the net. However, general taxes should probably apply to the net, both as a transport and for content, as it applies to other media. Tax content and traffic - don't regulate it.