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  • Biblical exegesis, Reading law in English rather than “law French,” e xercising popular sovereignty in move towards democratic participation, access to public documents.
  • Different industries: software vs. pharmaceutical vs. entertainment.. And different practices within each of these industries. Also, wouldn’t even *be* rational for copyright holder to be calculating so far in advance as copyright term suggests. Only one in a million is harry potter. Jane Ginsburg: “huge info superhighway will lay as wasteland unless we have strong ©, b/c otherwise no one will put info on net”
  • Wikipedia, fan websites, online gaming, software plugins, open source.
  • conceive of fun as a self-sustaining phenomenon is as a process of rapid creativity, incentivized by limited ownership of what one has created, and followed by divestiture back into the common pool of ideas and activities from which one has drawn in the first place
  • would have chilled video-sharing sites from promoting uses of videos that challenge the boundaries of fair use law. chilled users themselves from uploading and congregating around such videos in the first place. given more power to sites and information ecosystems pre-approved by those with an interest in a vision of perfectly enforced copyright law.
  • “ Inevitably, when millions of people are speaking, some of that speech will be objectionable”
  • Reinventing the rules of the game
  • Promotes the recycling, regeneration, and distribution of conversational tools, narrative shortcuts, mnemonics, stylistic moves, inventions, and other valuable heuristics.
  • Transcript

    • 1. A ROUGH GUIDE TO REGULATING THE VILLAGE GREEN INNOVATION SOCIETY: LEGISLATIVE INTERVENTIONS IN ONLINE CREATIVITY AND SHARING OF KNOWLEDGE Presentation at Tsinghua University School of Law 8 November 2009
    • 2. A Conversation
      • Man has learnt much. Has named many heavenly beings
      • Since we have become a conversation
      • And can hear from each other.
      • - Friedrich Hölderlin
    • 3. A Concern
      • This country is planted thick with laws, from coast to coast...
      • And if you cut them down...
      • Do you really think you could stand upright in the winds that would blow then?
      • - St. Thomas More
    • 4. An Observation
      • “ At every stage of the development of mass literacy, it has seemed reasonable to doubt that anything productive could come out of widening the circle of participants.”
      • - Jamie Boyle
    • 5. An Investigation
      • “ Once after supper, Wittgenstein, my wife and I went for a walk on Midsummer Common. We talked about the movements of the solar system. It occurred to W that the three of us should represent the movements of the sun, earth, and moon, relative to one another. My wife was the sun and maintained a steady pace across the meadow; I was the earth and circled her at a trot. W took the most strenuous part of all, the moon, and ran around me while I circled my wife. W entered into this game with great enthusiasm and seriousness, shouting instructions at us as he ran. He became quite breathless and dizzy with exhaustion.”
    • 6. The Problem(s)
      • How to promote “the progress of Science and Useful Arts”?
      • How to regulate creativity while preserving the vibrant market and non-market arenas in which unregulated creativity currently flourishes?
      • How to facilitate the knowledge-sharing that is necessary to the modern creation and distribution of creative content?
    • 7. Typical Responses
      • Exclusive Rights
        • Impose temporary legal restriction on the uses others can make of a work
          • Cost : static inefficiency. Others less able to change, improve, or make better version of the work in question. Artificial restraint on mass distribution.
          • Benefit : recoup costs incurred in production & distribution of the work. Ensure that those who create works are confident they will get reimbursed for the costs of the creative process, and for building out the creative infrastructure in which they and others will operate.
        • Result, on balance, is dynamic efficiency.
          • More works created. More value disseminated. No problem with free riders or tragedy of the commons.
    • 8. Typical Responses
      • Functions of Strong Intellectual Property Rights:
        • Stimulate invention & innovation
        • Deepen market
          • Ensure clear market & distribution channels that don’t degrade the product.
        • Maintain quality of works
          • Single entity provides semiotic & agricultural stewardship.
        • Diffusion of knowledge
          • Clear ability to trade and license inventions.
          • Basis for incorporating knowledge into new downstream products.
    • 9. Typical Responses
      • Creative Actors Treated as Rational Actors
        • Psychological assumptions:
          • People act as rational, self-maximizing entities.
          • People have objectively satisfiable system-wide desires and beliefs.
        • Institutional assumptions:
          • Creator is often a single individual or centralized entity.
          • Different ways that people have of articulating their creative goals are commensurable with one another and accessible through a common, universal incentive model.
    • 10. But...
    • 11. The Problem with Rational Incentive Models
      • Many different modes of creativity.
        • Few of these modes are triggered by calculations about the costs and benefits of a given action.
      • Many different motivations underlying creative action.
        • Often, large group of dispersed actors, rather than just one centralized entity.
      • Individual human choices may be about more than maximizing objective function.
        • Subjective motivations and altruistic, group-oriented action not captured by rational model.
    • 12. The Problem with Rational Incentive Models
      • “ Most, probably, of our decisions to do something positive, the full consequences of which will be drawn out over many days to come, can only be taken as the result of animal spirits—a spontaneous urge to action rather than inaction, and not as the outcome of a weighted average of quantitative benefits multiplied by quantitative probabilities.”
    • 13. How, then, to create laws and norms that regulate and encourage this “ spontaneous urge to action ”?
    • 14. How, also, to create laws that reflect the add-on nature of cumulative user-generated knowledge?
    • 15. A Different Solution
      • (1) Focus our legislative attention on the conditions of creativity, rather than on the rational thought process that we might wish creative actors to undertake.
    • 16. A Different Solution
      • (2) Set up a legal infrastructure that creates targeted zones of intentional under-enforcement of the laws regulating creative production, especially in highly transformative technology areas.
        • Goal is to ensure that laws that seek to regulate incentives of creative actors do not get in the way of actual conditions of creative production.
    • 17. A Different Solution
      • (3) Focus on knowledge-sharing, as opposed to knowledge exclusivity.
      • Knowledge-sharing is premised on:
        • wide access to existing knowledge;
        • wide distribution of the capability to transform existing knowledge into new materials;
        • free (or cheap) access to the tools and platforms for creation and distribution of free expression.
    • 18. A Different Solution
      • (4) Modular system design.
        • Not just one set of motivations/incentives regulating all parts of a creative system.
        • Instead, promotion of small group settings in which particularized routines and tacit knowledge can develop.
        • System of networked creativity depends upon different kinds of knowledge generated in localized settings.
          • Goal is to allow creativity and productivity to adapt to the unpredictable nature of the task at hand rather than be constrained in advance by certain system-wide rules.
        • Cultivate a wide range of possible groupings of motivational profiles.
    • 19. A Different Solution
      • Without (a) access and (b) transformative capability, knowledge remains static and insufficiently networked.
        • Downstream innovators must be able to adapt, incorporate, aggregate, and transform existing creative works into new ideas and products.
        • Groups must be able to work together without incurring large transaction costs each time some member wants to make a modification.
    • 20. A Different Solution
      • However, knowledge-sharing cannot take place unless someone makes these tools of access and distribution available in the first place.
      • And few if any intermediaries will risk making these necessary communication tools available if they incur liability for an individual’s infringing use of the tools.
    • 21. Lessons Learned from Web 2.0
      • Many risks of intermediary liability:
        • Copyright
        • Defamation
        • Obscenity
          • “ Inevitably, when millions of people are speaking, some of that speech will be objectionable”
      • In these and many other areas, the intermediary, or the conduit of information, is seen as the least cost avoider.
    • 22. Lessons Learned from Web 2.0
      • The solution to this problem, then, is to build in safe harbors from intermediary liability.
        • In the E.U., U.S., and elsewhere, various kinds of network service providers have immunity from prosecution for the activities of subscribers to their networks.
        • These safe harbors have created a foundation on which businesses and social environments alike have thrived in spite of the likely presence of illegal activity in such environments.
    • 23. Lessons Learned from Web 2.0
      • In sum, companies like Google, Facebook, MySpace, Twitter, etc., have thrived due to a prevailing legal regime that has tolerated a certain degree of illegal activity on their networks.
      • Fermentation: occurs when the line between the legal and the illegal has been blurred. Primary reason for the development of user-generated cultural communities on the Internet as we now know them.
    • 24. Safe Harbors
    • 25. Safe Harbors in U.S.
      • Communications Decency Act § 230(c) grants immunity to online publishers of amateur online conversations.
        • “ [n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”
      • Digital Millennium Copyright Act § 512(c) grants immunity to online service providers that facilitate the creation and distribution of user-generated content.
      • General conditions that intermediaries must satisfy in order to gain protection from liability:
        • Intermediary must not be actively involved in creating the infringing content.
        • Intermediary must take steps to delete infringing content once they become aware of it.
    • 26. Safe Harbors in E.U.
      • The E.U. eCommerce Directive grants immunity from prosecution to service providers, on the condition that they are merely a conduit for content and not actively affiliated with the individual sending or receiving infringing content.
    • 27. Safe Harbors
      • “ If we forced [a company] to try to find out which Web pages have problematic materials on them, there is no way it could return automated search results. Even if it employed an army of lawyers to scrutinize all of the content, it would still be in no position to tell which pages were infringing or defamatory. And even if it somehow figured out the answer for any given search result, it would have to determine the answer anew each time the search was run, because Web pages change frequently.”
      • -- Mark Lemley
    • 28. Safe Harbors
      • Towards a theory of safe harbors:
        • Creativity depends upon the ability to share and modify knowledge without needing to secure, in advance, the permission of those who have rights in the knowledge.
        • To promote this kind of creativity, important to preserve open & safe harbors of low-stakes, unregulated backwater.
    • 29. Safe Harbors
      • Creativity arises from conditions and contexts of abundance in which people can:
        • conversationally collaborate
        • share and refine their creative products with the world at large.
      • Creativity arises from contexts where people can have fun .
      • Prototype: the sandbox.
    • 30. Safe Harbors
      • An analogy: economically significant spaces for relatively consequence-free thinking and action often emerge from tenure-like job security protections.
        • federal civil service
        • federal judiciary
        • senior academia
        • senior partner ranks of some law firms
      • Significant time and institutional space, even in terms of performance expectations, is carved out for play, writing, and seemingly directionless conversation.
    • 31. Safe Harbors
      • Fun = networked or conversational interplay:
        • Between two or more people
        • Between a person and a detailed imaginative world
        • Between a person and an object (such as a book, character, or computer game)
        • Between two objects with sufficient intelligence to make things up as they go along
    • 32. Safe Harbors
      • Rather than following pre-existing agreements, contracts, or laws;
      • Conversational interplay is about engaging in a “pickup game” that “proceeds without benefit of explicit agreements” and relies “on a presumptively shared sense of fun.”
      • Takes place outside a well-regulated space where everything must be justified in advance.
    • 33. Safe Harbors
      • Free & Open Source Software
        • Observation:
          • good code results when developers have the ability to read, write, edit, and share their code with one another
          • such sharing is hindered when coders make assertions of exclusive rights in their creations
        • Conclusion:
          • rough restrictions, derived by community consensus, under which participants in the community agreed:
            • Negatively, to relinquish certain of their exclusive rights under copyright and patent law.
            • Positively, to continue recreating and modifying and improving one another’s works, and contributing those improvements back into the communal pool.
    • 34. Safe Harbors
      • Technology as a conversation.
        • An experimental approach towards language, law, creativity, and the products of creativity leads, in the end, towards a “richer and more-useful communication system.
        • “ This natural collaboration is part of what makes human communication so robust to failure. . . . When we describe things, our descriptions grow incrementally and can specify as much detail as needed. Clarification becomes correspondingly cumulative and open-ended.”
    • 35. Threats to Safe Harbors
      • Requirement that intermediaries enact policies to “deter unauthorized storage and transmission of IP infringing content.” (E.C. Memo re ACTA)
    • 36. Threats to Safe Harbors
      • Does a deterrence mechanism necessarily threaten the well-being of the Internet?
        • Content management and filtering systems can themselves contain sufficient leeway for users to engage in borderline-infringing or minimally transformative activities w/r/t existing works.
          • (at least theoretically)
        • Currently, DMCA notice-and-takedown regime gives reasonable flexibility to U.S. ISPs in determining whether infringing user should be terminated from future use of network.
        • This flexibility is a good thing: it enables the kind of case-by-case decisions that fair use law requires.
    • 37. Discussion
      • China’s resistance to safe harbors.
      • Safe harbors fall away as technology environment “matures”?
      • Threat of perfect enforcement of anti-infringement mechanisms.
      • Formalization of anti-infringement mechanisms in international treaties.
        • Specific deterrence mechanisms described in the (nascent) Anti-Counterfeiting Trade Agreement:
          • Graduated Response policy.
          • Three Strikes policy.
    • 38. Thank You
      • Nicholas Bramble
      • [email_address]
      • Yale Law School / Kauffman Fellow in Law
      • Information Society Project
      • www.yaleisp.org

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