James Boyle at Zeitgeist 2008

SPEAKER 1: Well, welcome back everybody. If I can get this-- talked about how we're going to have to figure out, in this transition of the internet generation, how do we make sure that the creativity continues and we create a momentum around people being able to create content, at the same time allowing this digital media, digital entertainment, digital world to continue? To make sure that we have a robust discussion we have none other than the William Neal Reynolds Professor of Law from Dukes Law School, Professor Jamie Boyle. Jamie made sure I cut the introduction down really short. He said, make sure you pull this book out and wave it to everybody. Everybody got this in your bag. It's very rare you see somebody who writes so seriously about copyright and intellectual property write a comic book. The question is, is this protected? Or can we just photocopy this and give it around? No. So with jokes apart, he's a leader in this area. He's recently been made the chairman of Creative Commons. In addition to that he's written a book, which he wrote about 12 years ago. If I get the title right, it's Shaman, Software and Spleens, which is about copyright and intellectual property. It's called The First Social Theory Of The Information Age by Harvard University Press. So with that introduction I'm going to have them come up here before I put my foot in my mouth more, and introduce the panel and tell us all about how do we deal with the issue of copying right or copy fight. Thank you very much. JAMES BOYLE: Thank you Nikesh. [APPLAUSE] JAMES BOYLE: Thank you everyone. My mother always told me, always make sure that you give them the lowest brow piece of content in the packets that they receive at the conference. So you have in your package, you have a [UNINTELLIGIBLE] CD, you have a Salman Rushdie novel, and a comic book by me. I always dreamed that one day my books would stand next to Salman Rushdie's, but this wasn't quite what I had in mind. I'm really delighted to be here and to talk to you. I've been asked to get the panel going, get the discussion going by summarizing in a little period of time what I've learned in the last 15 or 20 years about intellectual property online, a theme that kept coming up in our sessions today. And to talk to you a little bit about some of the major trends that I see and then I'm going to bring up a variety of extremely distinguished and fascinating speakers. So I have two themes. I always like people who summarize their talks at the beginning so that if I want to just check e-mail and kind of zone out I kind of know what they said. So my two themes are first, we're extremely bad at understanding openness. That we're extremely bad at predicting how well open and distributed systems will do, particularly online. We're extremely bad about understanding the virtues of distributed creativity. Creativity that involves a lot of people not working in traditional hierarchical organizations. And we are conversely very good at looking at the dangers, the real dangers that openness creates. So I'm going to claim that we have a bias about openness and I'm going to say it has some implications. Not just for intellectual property policy, but for our business plans, our methods of social organization, our culture, and our politics. And the second theme that I'm going to bring up is I'm going to say that the last 20 years has seen something remarkable. It has seen the fact that human beings, really for the first time, have become the subjects of copyright law in the way that they never were before. Human beings didn't used to be in the position of risking sanctions by copyright law. Certainly companies did, pirates did, but an average person interacting with content was not likely to commit any act the copyright law cared about. Read the book. Fine, that doesn't involve copyright law provided you purchased it. So those are the two themes that I'm going to argue that if we take those two themes together that th combination of them has some pretty powerful implication for our discussions. And in particular, about how we think about the changes that the online world has brought, and how it changes the world for the distribution, creation, and incentivization of culture. OK, my first point. Over the last 10 or 15 years behavioral economists, a group of economists called behavior economists figured out something that the non economists among us knew long ago. Which is people aren't economically rational actors. You might say, well thanks, we knew that already. But the behavioral economists didn't just say, oh, we're all crazy. What they said is, no, there are patterns to the way that we think. We are for example, risk averse. We are very worried about risk, and we're worried we don't take as much advantage of potential gains as you'd think. A simple example. In this audience I bet there are lots of people who bought warranties on their consumer appliances. Your TV, your computer, your washing machine, your fridge. I'm not saying-- you don't need to put your hand up and admit it-- but you probably sat there and you said, I know the odds of this warranty actually being worth something to me are low. I know in fact, I'm paying vastly too much for the warranty, but I'm going to buy it because if I don't the appliance will break to spite me. And you know you thought it, you don't need to confess it here. Behavioral economics teachers us about those kinds of patterns. I'm going to propose that there's another pattern like that, another pattern of irrationality. And it's our pattern of not understanding fully the virtues of openness. I want to give you two thought experiments. So in each case I have surgically removed from you your knowledge of the last 15 years. For some of you this would be a plus; you'd be quite happy about that. But remember, that's not just the Bush years. That goes back even seven years before the Bush years. So it's 15 years ago, and two groups come to you and they say listen, we have these competing ideas about networks and you have to pick which network to go with. So network number one is a truly open network. It runs on open protocols. The network doesn't care what kind of packets it carries. Anyone can connect to the network. I mean, any one, even non-approved people can connect to the network. They can innovate, they can put other stuff up, they can use it any way they want, including in ways we haven't even thought of yet. That's presentation number one. Presentation number two says, we'll have a nice controlled network. It will let you do a few things. The network will only pass certain kinds of content. We'll have a computer, we'll call it a terminal that will let you do four, maybe five, maybe six things. Print, view, scroll through-- we'll have a list of approved sites. It will look like Minitel or CompuServe or [? CFACTS ?]. Which do you pick? Well, come on, it's obvious. You have to pick number two. I mean, number one is crazy. I mean there'd be ***. Check. There would be curiously articulate letters from the sons of Nigerian oil ministers. Check. *** enhancement ads. Check. There would be massive illicit copying. Check, check, check, and check. And so, really anyone could put anything up. Anyone could say it. My neighbor could be talking about the Iraq war instead of the New York Times. We can't allow that kind of thing. I mean, these people-- some of them will be idiots. Check. They'll say things that are wrong. Check. They'll get in fights with each other. Admit it. You wouldn't take network one. It's scary. It's crazy. It wouldn't work. No one would build it if they couldn't control it. We have to have network two. We'd reinvent Minitel. We'd reinvent CompuServe. I think we might not reinvent the net today if we were offered the choice; if you surgically removed the knowledge of the last 15 years from us. Because let's face it. It looks crazy. Second example-- Wikipedia. I say to you I have two ways to make an encyclopedia. I want it to be the biggest encyclopedia in the world. I want it in lots of languages. I want it updated in real time. I want it to cover as many things as possible. Plan number one, we'll have like a website and people can put stuff up. Plan number two, we'll have a well capitalized, vertically hierarchically organized company. We'll have strong copyright, strong trademark protection. The encyclopedia Boylania will become the new authoritative voice, better than the encyclopedia Britannica. The editors will tell you, we'll pick the people who will write. We'll vet them, we'll edit them, and we will control it rigorously and monetize it. Which of these is a credible business plan to build an encyclopedia? I think you would agree it's not number one. The point is we systematically favor closed proprietary systems over open decentralized systems. Not that open systems are always right. Open systems, for example, t-shirts and service lines are not going to get a phase three drug trial. There are reasons we need control. Privacy. There are times when only closed will work. That's not my point. It's not that open is always right. It's that we skew towards the closed because our experience of property comes from things like the water sitting on that table. If I have it, you cannot. We intuitively don't understand the property that lives on networks. Intellectual property, property that is nonrival. Property that lots of people can have simultaneously. So we have a bias in our thinking. My second point. People, until, let's say the 1970s or so weren't really the subjects of copyright law. What do I mean by that? Of course, there was copyright law and of course, they were forbidden from violating it. But let's say it's the year I was born: 1959. And I run and I hand you a book and I say, quick, violate copyright. This is a thought experiment that would only occur to a law professor, I admit. But what would you do? Well, are you going to read aloud for it? Or you got to a mimeograph machine and painstakingly attempt to do it? Copyright law was intra industry regulation, horizontal regulation. It regulated the relationships between people who are in broadcast towers and printing presses and film studios-- Highly capitalized production and distribution networks. That's what copyright law was built to accommodate, and to protect the authors and creators whose works went onto those networks. OK, now fast forward to today. Spend a day not making copies of things, not distributing things, not doing all the things that copyright law tells you are regulated. You couldn't. Life would be almost impossible for any of us involved in the digital environment. The point is that in the digital network world we all constantly press copyright laws triggers. Copyright law used to be like an anti-tank mine that could only be set off by a competitor with a printing press or a movie studio. And now, all of us, all the time, are potentially capable of violating it. Now, there's a reason for this, and it's a reason that's a very important one. Lots of people are in fact, violating intellectual property. Lots of people have the power to make perfect copies, and they do. Some of them, many of them are illicit. We focused on that very well. We spent a lot of time in policy talking about it. We changed our laws to deal with it. We've introduced new legislation, like the DMCA and the European Copyright Directive to deal with it. We have digital rights management to deal with it. We have lots of ways of dealing with this issue. What we haven't focused on is the flip side of the same story. The happy side, which is we have effectively handed over to the number of connected people on the planet-- 1.3 billion-- we have handed over the tools of creation. We have 1.3 billion potential authors and photographers and filmmakers. And those people are now subjects of copyright law. They weren't intended to be the subjects of copyright law. The law was not designed with their interest in mind. Those people don't necessarily have the same interests as our conventional content industries, yet they to want to create and they want to share. I'm the chairman of the Board of Creative Commons. Creative Commons was designed to deal with this situation. What is it? Many people who create copyrighted works-- some of them work for profit, some of them nonprofit, some of them universities, some of them individuals, wish to share those works. They wish to put them up online. So you come to my website and you see that I have a calculus lesson or I have a Bach sonata that I played on my violin. Or I have a short story, or have a comic like the comic book that you have. What can you do with that? Well, presumably you could read it since I put it online or listen to it. Can you copy it, can you give it to a friend, can you include it in your curriculum of your K12 school? Can you modify it? Can you change it? Are there some uses which are forbidden? You don't know. And you could try and write e-mails to everyone in the world to get permission, but that would be extremely inefficient. Creative Commons is a charity which offers to those people-- those 1.3 billion potential creators-- a set of simple tools, licenses that they can attach to their work saying, you can use this so long as you give me attribution. You say who created it-- or you can use this, but only for noncommercial use. Or you can use that, but I don't want you to change it or modify it. With a few simple choices you can mark your work, and we did two things that nobody had done before. First of all, we made these licenses human readable. So that human beings instead of lawyers could understand them. This was quite an achievement, I have to tell you. The second thing we did was we made the machine readable. So that means if you go to Google or Yahoo, and you click the intimidating advance search button, you will get content that I am free to use or share. And that will allow you to search for a physics textbook or photograph of the Duke chapel, or any of these things whose creators have said, you have my permission. Use it. This is a creative commons. And it's a creative commons that has been created by individuals who actually wish to share and use. So those are my two themes. How do they come together? They come together because I believe that both in our business plans and in our regulation we are extremely good at figuring out the dangers of this new technology. And those are real dangers, let me be very clear. I don't believe that every junior downloader is Che Guevara fighting for enlightenment. I think it's somebody who just wants free music. But we run the real risk of missing the benefits. And in our desire to make the online world safe for commerce, we run the risk of undermining the things that brought us the internet in the first place. By introduction of ideas like digital rights management that you can't turn off in your computer. Trusted computing by systems which phone home if you attempt to do something the machine things is illicit-- any of you who have Windows Vista know exactly what I'm talking about. We may run the risk of going backwards because of our openness aversion-- our cultural agoraphobia-- we may run the risk of going backwards to the world in which we only can do a certain number of limited things. In which the computers have limited functions. When the. VCR introduced Jack Valenti of the Motion Picture Association of America said, "the video tape recorder is to the movie industry, as the Boston Strangler is to a woman alone." The VCR ended up providing, for some time, more than 50% of the movie industry's revenues because this new technology demanded content and the content was provided. We see the risks much better than the potential benefits. What I ask in our conversation that follows is, as we rightly seek to reward the creators and content producers and distributors, let's not also forget that we have democratized creativity to a universe to an extent, which would have been unthinkable years ago. Thank you very much. [APPLAUSE]