With our CwF + RtB experiment in full swing, we’ve asked some of the participants involved to provide some guest posts. The post here is from James Boyle, whose book, The Public Domain is a part of our Techdirt Book Club (signed by Boyle). If you order both the Techdirt Book Club and the Techdirt Music Club before midnight PT, August 3rd, we’ll throw in a free Techdirt hoodie, or a free lunch with Mike. We asked Boyle to give his thoughts on new media business models from his perspective, and he came back with this incredibly thought-provoking post that ought to create quite a bit of conversation:

The Associated Press recently released
the details of their plan to develop a new metadata/Digital Rights
Management format for news stories. (It wasn’t described as DRM, but
I agree with Techdirt
that it certainly sounds that way.) Particularly ominous was this
phrase "The system will register key identifying information
about each piece of content that AP distributes as well as the terms
of use of that content, and employ a built-in beacon to notify AP
about how the content is used." (My italics) Even those
without a strong dose of civil libertarian paranoia might bridle at
the thought of having their practices of reading and sharing
newspaper articles tracked by a central repository (other than
Google, that is.) "He sure is reading a lot of articles about
gay rights!" Pamela Samuelson calls DRM’d articles "texts
that rat on you." Somehow it doesn’t sound like a good slogan
for a sales campaign. (AP says it has no interest in tracking on the
individual user level.)

The response of the tech-savvy was,
predictably, pretty savage. Techdirt ("it’s difficult to think
of anything quite this useless") at least offered some
principles on which sustainable web businesses might be built.
Others were not as kind. Someone even created an extremely
profane and sometimes juvenile, but nevertheless quite funny
anonymous graphical translation of the AP’s diagram to explain
the new plan. The criticisms of the plan (clueless graphics aside)
centered around two tenets that are familiar to Techdirt readers.

1. an argument that DRM is a.) doomed
   to fail technologically and b.) has in fact already failed in social
   and economic practice. The general line here is that the arc of
   history bends towards technologies that are copy-friendly and
   anything that tries to turn that feature into a bug will soon fail if
   it hasn’t already.
2. an assertion that "old media"
   (other names include "the clueless" "dinosaurs"

   "non digital natives" "the walking dead" etc.)
   are demonstrably incapable of understanding the potential upside of
   the sharing economy, or copy-friendly technologies, still less the
   business models that can be built on top of them. This tenet is so
   sweeping that it would be much harder to defend if history didn’t
   give us such fabulous anecdata to back it up. My own favourite quote
   was about the technology that lowered the cost of copying in a prior
   technological era, "The VCR is to the movie industry what the
   Boston strangler is to the woman alone." That was Jack Valenti,
   the late head of the MPAA. Actually, unless the answer to that puzzle
   is "What is a savior?" Mr. Valenti would turn out to be
   wrong. Movie rentals to fill the — cheap — VCR’s that the movie
   industry had failed to criminalize, tax or enjoin soon provided more
   that 50% of the industry’s revenue.

Personally, I am at best agnostic
about tenet #1. I am not a technological determinist. I think that
DRM has failed spectacularly in some areas (root kits on CD’s),
provoked mild irritation and a pressure towards more open
alternatives in others (the move towards selling open MP3’s rather
than protected streams or DRM’d iTunes tracks) and become standard
(even if not loved) in others. Most of you are still being forced to
watch the FBI warnings on your DVD’s and fuss with region control.
Sure you could get around it. But how many people bother to?
Life is too short. I do think news is a particularly bad candidate
for DRM or even "beacons," but that is a specific judgement
not a general one.

On tenet #2, I think we are thinking
too narrowly. Behavioral economists have identified specific
deviations from economic rationality in human psychology– we tend to
value potential losses asymmetrically from potential gains, to use
simple heuristics even when they are shown to be false and so on. In
my new book, The Public Domain
(freely available
online, of course) I argue that we have a measurable cognitive
bias against "openness" — I call it cultural
agoraphobia, and I argue that it impedes us in understanding the
creative potential, productive processes and forms of social
organization that the web makes possible. The source of that bias (by
which I mean a demonstrated tendency to ignore certain kinds of
possibilities in a way that the data does not support) probably lies
in the fact that most of our experiences with property come from
physical goods — sandwiches that 1000 people cannot share, absent divine
intervention, fields that might be overgrazed or underused
if not subject to single entity control. Even digital natives still
spend most of the hours of their day in a world in which goods are
both "rival" and "excludable." Reflexes picked
up in that world tend to lead us astray when we are dealing with the
kind of property that lives on networks. "Like astronauts
brought up in gravity, our reflexes are poorly suited for free fall."

I would even argue that this cognitive bias, even more than
industry capture of regulators, is one reason why our current
intellectual property policy is so profoundly
and utterly misguided. But its implications are wider still.

So far, this sounds similar to the
standard technophilic critique of existing institutions — albeit
with a behavioral psychology chaser. But it isn’t. Just because it’s
a bias doesn’t mean it’s always wrong. It may be that, even once one
discards the bias, there may be no immediately obvious way of
carrying important social functions into the world of the Net. I
don’t care where on the techno-optimist spectrum you are (It ranges
from "get their eyeballs and their wallets will surely follow"
to "the only alternative you seem to be proposing is Google ads,
cover charges and lots of T-shirts.") Unless you believe that
markets spontaneously self-correct for everything (hint, check your
IRA balance before you answer this question) you have to acknowledge
that the problem that the AP is responding to may be our problem (how
to pay for the kind of expensive investigative journalism that is a
real boon to democracy and liberty) as well as their problem (how not
to die in the immediate future.)

Don’t get me wrong. The world of the
future will clearly have media that in some respects are far better
than what we have today, even when measured against the most rigorous
standards. I am pretty sure, in the world of 2020, pollution levels
in Silicon Valley and school performance in Palo Alto will be covered
with a wealth of data, expert systems, and interactive mapping in a
way that would have seemed a dream in 1990. That will be true for
most areas that have wealth, a wealth of data, and a highly educated
citizenry with lots of personal liberty and strong personal and
ethical reasons to be focused on a particular subject. It will be
much less true for areas where those conditions do not hold true,
particularly if you have a powerful in-group with strong reasons to
want to keep the eyes of the world away. Twitter and the camera
phone can do a lot. But they can provide neither the culture of
professional journalism, nor the sustained effort and resources to
develop a story over years. And there is an oft unnoticed corollary
to the claim that the dinosaurs are clueless. It means they are
unlikely to solve the problems themselves. Unless you think that
markets and technologies spontaneously self-correct for everything,
that leaves the rest of us.

In Robert Putnam’s fascinating book

Bowling Alone
he describes the way in which the threads of civil society and of
trust frayed during the 20th century — and offered a convincing
social science case that the implications were profoundly negative
for our culture. But the book was not a depressive one. Putnam
pointed back to the turn of the 20th century. Then, as now, people
noticed their society changing around them — industrialization, the
acceleration of migration to cities, urban isolation. But Putnam
points out that this prompted an extraordinary entrepreneurialism in
civil society. Groups were founded that today seem quaint to us —
the Kiwanis. the Rotarians and so on — all aimed specifically and
solving this failure of civil society. The message was not, in other
words, that these problems would self correct through markets and
technology. It was that we would need an entrepreneurialism outside
the market — one that
experimented with institutions and communities to solve the problems
of the day. For me, a glance at AP’s DRM business plan prompts the
same thought. Some of the functions that newspapers now perform are
going to be located elsewhere in society — in universities, in
foundations, in government, in blogs. Some of that will happen
spontaneously — but a lot of it will not unless we innovate in
social organization the same way the citizens of the early 20th
century did to meet the problems of urbanization.

I was
lucky enough to be involved with Creative
Commons from its inception and to help found Science
Commons and ccLearn.
Those organizations were designed to solve a particular problem for
which there was a market and legal gap — the problem of failed
sharing. Jesse Dylan’s brilliant video

on the subject explains it better than I could. Are there equivalent
institutional innovations that could help in the area of news
gathering? I don’t know. Journalism isn’t my field. But without
the kind of institutional innovation and experimentation in civil
society that Creative Commons (or the Kiwani’s) represented, I think
that we are unlikely to solve its problems. Web 2.0 business methods
alone, even with a Techdirt crystal ball, will not be enough. If I am
right, mocking the clueless will be a poor consolation.

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