The quality is not superb – I’m the vaguely humanoid shaped blob on the right.
Liveblog: Holmes Wilson, a co-founder and co-director of Fight for the Future was speaking at the MIT Centre for Civic Media on internet activism. Fight for the Future was one of the driving organising forces behind the SOPA/PIPA protests. In this talk, Wilson discusses the strategy and challenges of organising the protests, and the potential that the huge energy accompanying the protests can be channeled for future campaigns.
Wilson’s main point is that internet activism is hard, but not that hard – that the successes of the SOPA/PIPA protests can be replicated. He starts from the position that the internet gives people a massive new power of freedom of expression, but that power is inherently fragile. He then argues that in order to succeed in defending the internet, we need to make everyone an activist. Wilson is hopeful that it is not difficult to do this because “people are on our side”.
One of the really interesting things I’m finding in this ongoing research about commons is that it is really difficult to agree on a price to release a work to the public for anyone to download for free. Approaching publishers with an offer to buy the right to publish a work for a certain amount of money, with no provision for future royalties, is a really tough process. As Eric Hellman from unglue.it explains, for publishers:
there’s no upside to setting a price. Because if they get their price, then they worry that they’ve set it too low. And if they didn’t – well…
Because “nobody knows” how successful any creative work is likely to be, it is hard for a publisher seeking to maximise revenue to agree on an up-front price that might displace future royalties. Of course, we might expect risk-averse publishers to prefer the certainty of an up-front price, but the very fact that people are willing to pay that price might suggest that there is demand for the work, and more revenue might be available on the market. I have heard from a few authors how difficult it is to get conventional publishers to agree on a price to make a work available in an open access due to this fundamental uncertainty of demand. Read more ›
Liveblogged from lunch talk at Berkman
Daniel Caron explains that disintermediation makes things much more difficult for archives. Previously, archives waited for material to come to them – saw their role as beginning after the selection process. Now, if archives are to be able to perform effectively, they need to be much more active in the selection of material. There are three big effects of disintermediated digital publishing:
Archives are struggling to triage or select material – they have gone from receiving easily understandable information to a superabundance of information:
As literacy and technological capacity increase, we go from relatively meaningful, understandable and masterable traces to noise. Read more ›
Unglue.it is a crowdfunding platform that allows users (‘ungluers’) to contribute to the costs of publishing open access books. So far, the site has ‘unglued’ three books. The most influential of these is Ruth Finegan’s “Oral Literature in Africa“, a classic research monograph first published in 1970, which has had significant scholarly impact. The other two books are more recent and less well known: one is a 2009 guidebook about becoming a librarian, and the other is a new erotic thriller by Dennis Weiser. Unglue.it has recently announced a new deal with De Gruyter, an academic publisher, to offer 100+ titles for ungluing.
I recently had the opportunity to talk with Eric Hellman, founder of Unglue.it, about the project. Hellman is concerned about “the difficulty that libraries are having in navigating the transition [from print to digital] in a way that maintains their position and their traditional role” — providing access and discovery to the public. Because “the big six publishers have been extremely slow and reluctant to allow libraries to lend ebooks”, libraries are facing “an existential problem as to whether they will be able to continue to exist going forward.” Hellman thinks that big changes are needed, “both on the publisher side and on the library side” to enable libraries to survive and continue to provide access to books.
You can read the details of the interview on the Cultural Commons wiki, a new wiki I have started to bring together case studies of collective action from around the world.
At the Drake IP Roundtable 2013, I presented about my current research, looking at examples of collective action in free and open cultural production across the creative industries (see more detail). Slides available here.
I noted that consortia-based open access are examples of ‘peaceful revolutions’ (Suber) that challenge the assumptions of copyright law. These models challenge the assumption that users are free riders. To the extent that copyright is based on efficiency, these models also present a challenge for the exclusivity of copyright. Importantly, we don’t know the extent to which these models scale, and we don’t know how they work.
I spoke about a number of examples:
I argued that it is now time to try to aggregate all of these examples within a common framework, and that Ostrom’s IAD framework is useful in this regard. This is heavily informed by Madison, Frischmann, and Strandburg’s paper, and is the subject of my ongoing work.
Comments on my presentation (Some responses by Jon, fellow panelist):
Q: Are you suggesting a single platform for distribution or a model for multiple competing platforms? And if you are, how do you deal with the failure of crowdsourcing that has been written about re kickstarter? Also, can you both elaborate on the advantages of the platform for artists and how those benefits are different from those for consumers?
Nic: I don’t see that centralized models work better than decentralised models, but I am agnostic about that, I’m more interested in the process. Re risk – one of the interesting things about creative production is it is inherently risky. That is why in the traditional model, the intermediaries bore the risk so it made sense they also got much of the benefit. What is interesting about crowdfunding is that it provides a cheap way to test the market and to fail – it lowers the barriers. We will always see failures. But the failure rate of platforms like kickstarter is not something to worried about. Just because there are failures doesn’t mean that the model doesn’t work. E.g. Bjork’s failure is an example of when a producer does not have a market for the product she is willing to offer – but much cheaper way to fail than if she had invested a few million of her own money
Jon: I agree essentially with what Nic said. The failure rate is not necessarily different in crowd funding than across traditional media. In traditional models, the few “hits” fund the other products. In my model, the cross collaterising means that one failure doesn’t topple the whole model. The reason my product is centralized is that there is a commercial side to this so that there is a “go to” place for the project. Consumer transaction costs – so people can go to one place and find everything they want. The third question re benefits – I’ve spent more time on artists side. Audience has/will benefit b/c currently intermediaries are bleeding of much of the costs and if we lower costs then prices lower. The other thing is being responsive to what audiences want.
Nic: I’m interested in what else this enables in terms of consumer benefits from funding things in advance. For things funded in advance, the utilitarian justification for copyright drops away. So open access is a good way to address that.
Q: For Jon – Crowdfunding model that currently exists is kickstarter, but by the end of this year there might be a viable “equity model” which might open up more options for you. For Nic – when you were talking about relationships, might also want to explore that some campaigns are offering social benefits e.g. part of the money goes to a particular cause – and that seems to be a gravitational force for people to attract them to contribute.
Nic: That is a great point. [Discussed indie humble bundle model – which donates 10% to charity]. I’m interested to see if and why people are more likely to pledge to products that support charities and why they don’t just give to charities. [More controversial example = crowdfunded medical procedure for developing countries]
Jon: The model I’m talking about uses crowd funding as proof of concept, not necessarily as final funding source. (EG is Veronica Mars)
Q: re social norms – reminded me of work from Dan Ariely at Duke – studied how framing a situation as a market setting or a social setting changes norms. Seems like you are talking about changing the farming of things traditionally as a market setting more to a social setting. Also seems like this shift emphasises more the importance of established reputation – does that crowd out other less known but still valuable artists?
Nic: In these projects what changes is the locus of power – whether projects can be found online in some ways predicts the success. But in one sense these models don’t really change how things have always been done – you still needed reputation manufactured through publicity from your intermediary. So you are right that building an audience is tough, but it has always been tough. It’s just that the dynamics are changing.
Greg: I emailed you an article about predatory oa – reaction? Are you including open source software in your analysis and if so, how does that impact? Even if not looking at software, might be good to look at Benkler’s theory in addition to Ostrom’s
Nic: One of the limitations with private collective action models – e.g with gold oa – no mechanism for assessing value for money (e.g. gold open access says it costs x to publish but no proof, so risk of over compensation to publishers) – benefits of models like Scoap3 is that it address those limits by using tender process.
FOSS – one of the motivations that leads me to Ostrom is that we usually talk about FOSS and Wikipedia but there is no evidence that the models that work there will extend beyond software that is very specific. So I am definitely interested in FOSS but I’m interested in how models scale across different artforms etc and I think Ostrom’s model works best.
Liveblogged from Drake IP Roundtable 2013.
Joshua Sarnoff considers that we need a “Meta-theory” of reform in patent: this is not just about a better utilitarian calculus, but also fairness.
The Patent Office is concerned with backlog of patents. There is a tradeoff between faster processing and reduced quality decisions.
There are avenues congress, courts, and PTO are investigating to improve quality: post-grant review, fee rules, informational collection power (Starfruits) & oaths (but not mandated searching or evaluation); reduced consequences of information failure (lying); second pair of eyes review.
Quality means three things: avoiding category 1 errors, avoiding category 2 errors, and avoiding delays. There is no consideration of social value – for example, increasing quality by increasing obviousness bar. The public deserves to rely upon PTO determination through a “thorough, accurate, and timely examination of each application” (PPAC quality report).
There has been a failure by the courts. The Phillips decision is stupid. The rules do not promote clarity at all.
Liveblogged from Drake IP Roundtable 2013.
Karen Sandrik asks what is the role of the common law in patent law right now?
Argues we need a formal but forgiving approach. Where an inventor assigns a patent to a company, we need a formal but forgiving approach; when a firm assigns a patent to another firm, we need much more formality.
In FilmTec and Arachnid, there were agreements to grant future interests in potential patent. In copyright, we have works made for hire; we don’t have anything like that in patent. In FilmTec, language was “does hereby grant”. In Arachnid, the language was not quite as active – “rights will be assigned”. Under FilmTec, the “does hereby grant” connotes a “magical” immediate transfer of a future right when it vests. Under Arachnid, by contrast, the employer only has equitable interest until a further act of conveyance. The Supreme Court considered these cases, and Judge Breyer noted that given that there were only slight differences in wording (“hereby”), it seems too much has been made of the distinction between the FilmTec and Arachnid rule.
Do we need parties to use really specific magic words, or are other forms ok? Really bright line rules can lead to mechanical formalism. Sandrik considers formalities in light of Lon Fuller’s view about the importance of encouraging users to act in certain ways. Perhaps different levels of formality can be useful. In FilmTec and Arachnid, inventors were unsophisticated. For individuals inventors, it might be useful to use standard contractual principles to figure out intent. In that case, using plain language should be OK. For company to company transactions, on the other hand, certainty is important, and imposing burdens on companies to use strict formalities makes sense.
Liveblogged from Drake IP Roundtable 2013.
Considers joint infringement of a method claim. There was a patent covering something like the iTunes system, with four steps performed by at least three companies. Because no entity performed all of the steps, the patent is not easily enforceable. Defendants may say: “We may perform steps A,B,C, but we don’t perform step D – therefore we don’t infringe.”
Argues that to reduce the cost of enforcement of multiparty claims, the law should clearly explain what sort of behaviour infringes multiparty claims, and provide a remedy for multiparty infringement. So, in Akamai v Limelight, a patent had five steps; the Limelight system performed all the steps, but Limelight pushed one of the steps to the customers, therefore did not infringe.
On appeal, not all the questions were addressed; in particular, there was no answer to whether patent could be indirectly infringed.
Liability of induced infringement is now premised on a showing that:
the alleged inducer knew of the patent;
(a) it induced the performance; and (b) it performed some or all and induced another party to perform the others; and
those steps were performed such that an actual infringement occurred.
The problem with this approach is that it means that patents are not easily enforceable. The Newman dissent in that case is interesting: essentially, provides that if the claimed steps are performed, the claim is infringed and there should be liability. It is not clear how to apportion liability, but tort law principles might help.
In six years after Akamai, the Federal Circuit have given us the spectrum of multiparty activities, some of which the court thinks should be discouraged, others not. Robinson worries that allowing infringement through concerted action decreases incentives and elides fair rewards. Robinson notes that without the possibility of enforcement, there are now many multiparty method patents that are essentially open source methods that are free to the public. Robinson worries that protecting methods with trade secret with become increasingly important in the absence of patent protection.