Food for thought.

HANNITY: Africans are cooperating with our new oxygen rationing policy by holding their breath when the US requests it. But some liberals want to destroy African society by making them dependent on US-subsidized oxygen by getting rid of the hold-your-breath requirement. Will these do-gooder liberals get away with it?

And from the left…

LESSIG: Well, you see, I’m not against cooperation, of course, but I think we have to investigate the various models of different markets with their varied permission struc–

HANNITY: Time’s up!

That’s next week, on the Free Trade Zone. Only on FOX!

First of all thank for coming to Oslo and for sharing your ideas with us. As I said in my comment to your speech I admire your work. I find it interesting and relevant, even if I do not agree with everything you say.
Let me also say that I am sorry if my comment about you being naive was misunderstood. What I meant was that your American perspective seemed a bit to the side of the situation in a small European country, with a different tradition of authors’ rights, than the American one.

I do think that academic debate is among other things about not agreeing.

I also think that you have misinterpreted the reactions of the audience in Oslo. Many like myself found much of what you said relevant, including the points you make about corporate power over copyrighted material. But let me just repeat some of my points in connection with the debate as this seems also to have been misunderstood by some of the people from the EFN.

1. I do think it is important to be aware of the difference between the Anglo/American copyright traditition and the European “droit d’auteur” tradition. Many of us are concerned about maintaing our moral rights to our works, not least in regard to the tendency that now exists by universities to acquire the rights to your teaching materials and then using them out of context. This is also relevant in relation to artistic works, which may be used in a way that is contrary to the message they originally contain. Let us illustrate by the following: a song by a leftwing songwriter is being repackaged and used by the neo-nazi movement. This to me would constitute an infringement on the original composer’s moral rights, and should not be condoned.

2. I referred to the situation here in Norway and elsewhere where research funding increasingly only go to big integrated projects, and where it is very difficult for individual researchers to get funding for smaller projects. In such a situation the fund set up by the Norwegian Non-Fiction writers financed by remuneration paid for copying of copyrighted non-fiction and scholarly material serves as a source for funding for the creation of new works of research and general literature. Consequently licensing in this situation contributes to new creation.

3. I also agree with you, as we discussed after the discussion, that the tendency to prevent researchers and professors from disseminating their work because patents and copyright have been taken over by the universities and reserach institutions is wrong and constitutes an infringement on academic freedom, and it is something that I work hard to prevent happening here in Norway.

4. I have nothing against letting some of my work be put on the web. But I want to decide myself when this should be done.

5. I also warned against certain publishing contracts that exist among American, British, and multinational publishers (e.g. Elsevier) that I call “cosmos and vacuum” cleaner contracts because they demand that you sign away all rights. I want to keep my portofolio of rights and decide what to with them myself f.e. letting them by used on creative commons, something that would be impossible if you have signed one of this all ecompassing contracts.

6. Neither have I anything against scientific material being licensed to be used in developing countries. But I am skeptical to a system that undermines copyright in developing countries, because it would serve more than anything to undermine the small and struggling publishing industry in these countries.

7. And this is also a point in relation to the situation in Norway. Academic publishing in Norway is in a difficult situation partly because of the development of course packs and copying both analogue and digital, one way of securing the future of Norwegian academic publishing is to see that the real use of published material is being licensed in such a way that authors and publishers get a fair remuneration in order for them to continue to publish in Norway.

And finally I think that we who try to combine a belief in the right of authors with a system that provide fair remuneration, but also think that there are areas that should be reserved for fair use as well being used in connection with initiatives such as creative commons, based on the system of authors’s rights should continue this important discussion. And I certainly did not find your visit a failure to connect.

All the best

Helge R�nning

It seems to me that science is very much a special case when it comes to these structures. Science thrives on free information exchange — in fact, it only really WORKS when the methods and the research are as transparent as possible. Otherwise you end up with endless reinventings of various wheels and forkings of theories that should have been headed off early through simple, widespread peer review. This is why the standardized adoption of TeX in the physics/math communities is so useful — it allows for nearly effortless communication.

Art, on the other hand, isn’t necessarily improved by exposure to other art. Hearing a song you wrote will not automatically have anything to do with a song I write, even if we use the same instruments and subject matter. There’s no such thing as musical Darwinism, where only the very best songs and artists survive (though if someone made an American Idol Deathmatch, I know I’d watch).

The person who argued “[t]hat we hurt developing nations, for example, if we give them knowledge for free,” is running the same road, in the opposite direction. According to him, by simply spreading science around, we short-circuit the development of nations. What the argument misses is that very little is gained through wrong science. You’ve got Ptolemy, you’ve got Keppler. Both give you reasons for why the planets move like they do. But as far as progress goes, it’s just plain better to get the right answer sooner, rather than wasting time trying to figure out the exact period of the celestial epicycles. Smart is smart, and from a scientific perspective, it’s better to let the smart people work on answering the right questions.

So let’s separate this out. If we’re talking about licensing art or other creations that have virtue by their very existence, then this structure of CR, ER, FR makes sense. If we’re talking about new science, whose has virtue solely by being more right than other theories, then discussions of permissions, licensing, and the like seem to be a little off topic.

The recording of the questions and answers session is now available here: ftp://ftp.skolelinux.no/skolelinux/press/20050520-kopinor/lessig_koskinen_qa.mpeg. And Ms. Tarja Koskinen-Olsson’s talk is here: ftp://ftp.skolelinux.no/skolelinux/press/20050520-kopinor/Tarja_Koskinen-Olsson.mpeg.

After all, it has its analogies in the world of the production of physical goods. There are three models here as well:

– ER – you buy something, you pay for it

– CR – the government buys things, compensates producers, and provides them to consumers for free

– FR – you receive foreign aid

One of the significant problems with a developing economy is that there isn’t a lot of money. This weakens the utility of CR, because the government doesn’t have enough money to compensate producers, and hence, you get an economy of poorly compensated and hence poorly produced goods. CR assumes a certain level of prior wealth, which for developing countries and for all practical purposes leaves the choice as between ER and FR.

Now it is frequently argued that in developing countries, except in emergency situations, the net effect of foreign aid is to hinder development of a local economy. The dumping of free food on a nation, for example, prices food below the level of sustinance for local farmers, in effect killing the local farming industry. After the Tsunami, for example, it was common for governments to refuse certain types of aid for precisely this reason.

That leaves ER as the only means for a developing nation to generate any level of internal wealth, and so, it is not surprising that this was the option favoured.

I don’t think it’s a straightforward thing to argue against this line of reasoning. Starting from the basic presumptions that (a) professors want to make a good living, and (b) their governments don’t have enough money to pay them well, it seems a bit much to expect them to cheerfully contribute their production for free, nor either to welcome the importation of free and competitive product from wealthy nations.

My response has two parts.

The first part is that the argument thus far has been told from the point of view of the producer. This something I commonly encounter when speaking to university audiences. Producer audiences take producer perspectives. But the primary beneficiaries of non-ER forms of distribution are consumers. So I try to be clear that my intent is to address the needs of consumers. And that CR and even FR are of great benefit to consumers, so much so that they become almost inevitable, and that the road producers need to travel with me is an exploration of how to preserve the interests of producers in a consumer oriented economy.

It is at this point I advocate for something like a CR model. And while I agree that governments of developing nations cannot afford to pay for CR distribution, I argue that it is clear that more wealthy nations can pay this amount, and that therefore the direction we should take is to ensure that producers in developing nations are able to share in the paymen ts made by wealthy nations to producers.

This, indeed, addresses the same problem with FR. If foreign aid were composed of aid purchased from local economies by rich nations and distributed to the poor, it would have no negative impact on the local economy; indeed, by stimulating demand an d an infusion of capital into the local economy, it would have a positive effect.

Had I been in a similar situation – and with benefit of your experience (for I confess I would have taken a line very much like the one you did) I would argue for FR and CR economies on the basis of their potential to generate payments for production of goods for which there is no local demand (because of cost, not need), and where local distribution isw thereby enabled. In other words, you get to sell your product to an export market and keep it locally.

Interestingly, though, in order for this to happen, the greatest changes need to take place, not in developing nations, but in developed nations. A characteristic of many foreign aid programs is that the materials purchased to provide foreign aid are purchased from the donor country. It is necessary, in order to ensure a worldwide distribution of revenue, to spread these pruchases around, to ensure that content creators in less wealthy nations are paid through programs funded by wealthy nations.

I have no illusion that this short ourline is a complete answer. But it does give me a frame for any remarks I would ever make in such a context. I would not say something along the lines of, “Here’s what you should do…” Rather, I would say, “Here’s what I think my country should do, and the steps I am taking at hoime to ensure that this happens.” I suspect that if I told such an audience I am trying to develop a market for their production, I would receive a much warmer reception.

But, of course, this – like all predictions – is subject to empirical verification.

Rather than support Exclusive Rights, he assumes that the compromises made for physical property, should be applied to intellectual property.

Moderation in all things is not a bad strategy, but it can often fail, if the pendulum has already swung to one extreme you end up with a moderate strategy, at the three quarter point rather than the middle.
Another occasion when it fails to work, is when the model is wrong.

The physical property model is just wrong for intangable materials. It doesn’t walk like a duck, or quack like a duck, so stop trying to force it to be a duck. Intangables are not physical, so stop trying to attach them to some atoms and claim they are physical.

He now extends his moderation to the economy of ideas (note: not the economy of physical objects), and argues for a mixed economy.

He identifies this as the Exclusive Rights (or permission) economy (ER), the Collective Rights (CR) Economy and the Free from Exclusive Rights (FR) Economy.

He then chastises the extremists from each economy, and advocates a mixed market.

He is then suprised when he encounters people from the CR economy and they can see no limit to the application of and extention to Collective Rights, Just as the Exclusive Rights people can see no limit to Exclusive Rights.

Ref: 125 in this paper by Prof Lemley: http://ssrn.com/abstract=582602

See Gordon Tullock, The Welfare Costs of Tariffs, Monopolies and Theft, 5 Western Econ. J. 224, 226, 232 (1967). Tullock’s classic analysis applies to efforts to capture an existing government benefit. The analysis would seem applicable to efforts to create a new right as well.
In both cases, rent-seekers will be willing to spend up to their expected value of the rent (the money they will receive if successful, discounted by the probability of failure and any risk aversion) to try to acquire the rent.

So if you create a right, people have an incentive to aquire and extend that right, and will expend resources to do so. Where as if an economy can operate without that right, then there is no possibility of aquiring the right.

In fact, the physical limitations of live performance and restricting access automatically limit the rewards (to performer, venue owner etc), while providing sufficient incentives, and it is the public that aquires the benifit of low cost copying and distribution, just as it is the public who are picking up the cost of distribution and storage.

This reduces the tendancy for a winner takes all model and gives more scope for a larger variety of more moderately renumerated performers.

Exclusive rights, make any marginal gain from marketing justified, and reduce distribution as the intention is to maximalise profit form every transaction. The result is the public good is minimalised, and the private profit maximalised.

When you have the wrong model, only the radical change to a more appropriate model will do, moderation is not the solution.

The people at the Kopinor Symposium were very protective of their own views, although there were a few exceptions. When we finally managed to get Dr. Lessig to Norway, it was disappointing to see how little people wanted to challenge his ideas and their own. Hopefully there will be another opportunity….

And it should be pointed out that a reputation for great work is likely to lead to a higher salary from one’s home institution (or a better paying job at another).

“we hurt developing nations, for example, if we give them knowledge for free. They should have to pay for the truths we create. It weakens them, the argument went, if they can just take what we have discovered. Better to encourage their industry of science than to destroy it by simply spreading the truths that science here has created.”

Professor Lessig, I admire your civilised reaction to what is in fact a deeply racist statement from a member of your audience. I for one would have been much more blunt with the person who came up with the argument from the quote above.
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One thing you (here refering to Lawrence) made apparent in Free Culture (at least the way I read it) was that developing economies frequently enter the market place by mimicry. I beleive the example revolved around the invention of cinema, Thomas Edison’s patents, and California’s lax copyright law, in which cinema exploded becuase film makers didn’t have to compensate edison or American’s refusal to honor British copyright law, or really any of several billion examples i.e. Asia’s technology companies, the wheel, the oven, etc. Just wanted to point out a unique little niche of mimmicry I found the other day. Here in Korea special forces is the latest pc room sensation (moc game even has a show built around it similar to their huge warcraft specials). The game basically is Tom Clancy’s Special Forces or Ranbow Six only made by a group in Beruit. Link here. It retells many of the missions the lebanese did during Israel’s invasions of Lebanon (googled it got 1978 and 1982). It’s interesting though in that it’s much bigger in Korea than the Clancy games, but has created a market for tactical shooters here i.e. the Clancy games that were pretty badly marketed here (special force like many popular korean games is a free download and then you pay a monthly subscription fee to play online and is advertised on TV) are suddenly available everywhere (especially rainbow six). Hence the copy is marketing the original at no expense to the original copyholder except distribution in Korea. It’s interesting to in the transformative nature of the game while Americans love WWII games (think of EA’s million selling WWII franchises) Special Force is stricly Muslim and while I can’t vouch for the games content (still never played it) it does make me think of genre. Is Special Force a violation of American copyright law becuase it so closely resembles the Clancy line of games or is it merely another product in a genre of tactial war games that spot our planet like flies?