Required Reading: the next 10 years

During my keynote at the iCommons iSummit 07, I made an announcement that surprised some, but which, from reports on the web at least, was also not fully understood by some. So here again is the announcement, with some reasoning behind it.

The bottom line: I have decided to shift my academic work, and soon, my activism, away from the issues that have consumed me for the last 10 years, towards a new set of issues. Why and what are explained in the extended entry below. | technorati |

Three people I admire greatly are responsible for at least inspiring this decision.

The first is Obama. Six months ago, I was reading Obama’s (really excellent) latest book. In the beginning of the book, he describes his decision to run for the United States Senate. At that point, Obama had been in politics for about 10 years. Ten years, he reflected, was enough. It was either “up or out” for him. He gambled on the the “up.” We’ll see how far he gets.

But for me, Obama’s reflection triggered a different thought. It’s been a decade since I have become active in the issues I’m known for. Over this decade, I’ve learned a great deal. There has been important progress on the issues — not yet in Congress, but in the understanding of many about what’s at stake, and what’s important. Literally thousands have worked to change that understanding. When we began a decade ago, I would have said it was impossible to imagine the progress we’ve made. It is extraordinarily rewarding to recognize that my pessimism notwithstanding, we are going to prevail in these debates. Maybe not today, but soon.

That belief (some think, dream), then led me to wonder whether it wasn’t time to find a new set of problems: I had learned everything I was going to learn about the issues I’ve been working on; there are many who would push them as well, or better, than I; perhaps therefore it was time to begin again.

That thought triggered a second, this one tied to Gore.

In one of the handful of opportunities I had to watch Gore deliver his global warming Keynote, I recognized a link in the problem that he was describing and the work that I have been doing during this past decade. After talking about the basic inability of our political system to reckon the truth about global warming, Gore observed that this was really just part of a much bigger problem. That the real problem here was (what I will call a “corruption” of) the political process. That our government can’t understand basic facts when strong interests have an interest in its misunderstanding.

This is a thought I’ve often had in the debates I’ve been a part of, especially with respect to IP. Think, for example, about term extension. From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a “no brainer.” As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose.

Yet governments continue to push ahead with this idiot idea — both Britain and Japan for example are considering extending existing terms. Why?

The answer is a kind of corruption of the political process. Or better, a “corruption” of the political process. I don’t mean corruption in the simple sense of bribery. I mean “corruption” in the sense that the system is so queered by the influence of money that it can’t even get an issue as simple and clear as term extension right. Politicians are starved for the resources concentrated interests can provide. In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars.

The point of course is not new. Indeed, the fear of factions is as old as the Republic. There are thousands who are doing amazing work to make clear just how corrupt this system has become. There have been scores of solutions proposed. This is not a field lacking in good work, or in people who can do this work well.

But a third person — this time anonymous — made me realize that I wanted to be one of these many trying to find a solution to this “corruption.” This man, a Republican of prominence in Washington, wrote me a reply to an email I had written to him about net neutrality. As he wrote, “And don’t shill for the big guys protecting market share through neutrality REGULATION either.”

“Shill.”

If you’ve been reading these pages recently, you’ll know my allergy to that word. But this friend’s use of the term not to condemn me, but rather as play, made me recognize just how general this corruption is. Of course he would expect I was in the pay of those whose interests I advanced. Why else would I advance them? Both he and I were in a business in which such shilling was the norm. It was totally reasonable to thus expect that money explained my desire to argue with him about public policy.

I don’t want to be a part of that business. And more importantly, I don’t want this kind of business to be a part of public policy making. We’ve all been whining about the “corruption” of government forever. We all should be whining about the corruption of professions too. But rather than whining, I want to work on this problem that I’ve come to believe is the most important problem in making government work.

And so as I said at the top (in my “bottom line”), I have decided to shift my academic work, and soon, my activism, away from the issues that have consumed me for the last 10 years, towards a new set of issues: Namely, these. “Corruption” as I’ve defined it elsewhere will be the focus of my work. For at least the next 10 years, it is the problem I will try to help solve.

I do this with no illusions. I am 99.9% confident that the problem I turn to will continue exist when this 10 year term is over. But the certainty of failure is sometimes a reason to try. That’s true in this case.

Nor do I believe I have any magic bullet. Indeed, I am beginner. A significant chunk of the next ten years will be spent reading and studying the work of others. My hope is to build upon their work; I don’t pretend to come with a revolution pre-baked.

Instead, what I come with is a desire to devote as much energy to these issues of “corruption” as I’ve devoted to the issues of network and IP sanity. This is a shift not to an easier project, but a different project. It is a decision to give up my work in a place some consider me an expert to begin work in a place where I am nothing more than a beginner.

So what precisely does this mean for the work I am doing now?

First, and most importantly, I am not leaving Creative Commons, or the iCommons Project. I will remain on both boards, and continue to serve as CEO of Creative Commons. I will speak and promote both organizations whenever ever I can — at least until the financial future of both organizations is secure. I will also continue to head the Stanford Center for Internet and Society.

But second, and over the next few months, I will remove myself from the other organizations on whose boards I now serve. Not immediately, but as I can, and as it makes sense.

Third, in general, I will no longer be lecturing about IP (whether as in TCP/IP or IPR) issues. No doubt there will be exceptions. In particular, I have a few (though because this decision has been in the works for months, very few) obligations through the balance of the year. There will be others in the future too. But in general, unless there are very strong reasons, I will not be accepting invitations to talk about the issues that have defined my work for the past decade.

Instead, as soon as I can locate some necessary technical help, I will be moving every presentation I have made (that I can) to a Mixter site (see, e.g., ccMixter) where others can freely download and remix what I’ve done, and use it however they like. I will continue to work to get all my books licensed freely. And I am currently finishing one last book about these issues that I hope will make at least some new contributions.

Fourth, these pages will change too. My focus here will shift. That will make some of you unhappy. I’m sorry for that. The blog is CC-BY licensed. You’re free to fork and continue the (almost) exclusively IP-related conversation. But I will continue that conversation only rarely. New issues will appear here instead.

Fifth, some will think this resolution sounds familiar. In the beginning of the Free Culture talk I gave at OSCON 5 years ago, I said that talk was going to be my last. In fact, what I intended at the time was the last before the argument in the Eldred case. In my nervousness, I didn’t make that intent clear then. The literally hundred of talks since (85 last year alone) should have made that obvious.

But again, this is not a resolution of silence. It is a decision to change channels. This new set of issues is, in my view, critically important. Indeed, I’m convinced we will not solve the IP related issues until these “corruption” related issues are resolved. So I hope at least some of you will follow to this new set of questions. For I expect this forum will be central to working out just what I believe, just as it has in the past.

Finally, I am not (as one friend wrote) “leaving the movement.” “The movement” has my loyalty as much today as ever. But I have come to believe that until a more fundamental problem is fixed, “the movement” can’t succeed either. Compare: Imagine someone devoted to free culture coming to believe that until free software supports free culture, free culture can’t succeed. So he devotes himself to building software. I am someone who believes that a free society — free of the “corruption” that defines our current society — is necessary for free culture, and much more. For that reason, I turn my energy elsewhere for now.

So thank you to everyone who has helped in this work. Thanks especially to everyone who will continue it. And thanks the most to those who will take positions of leadership in this movement, to help guide it to its success. Just one favor I ask in return: when you get to the promised land, remember to send a postcard.

Posted in eye | 193 Comments

iCommons Summit 07 — watch it at Flickr

It’s pretty here. Watch.

Posted in creative commons | 1 Comment

Disclosure Statement and Statement of Principle, 1.1

I’m grateful for the replies to my disclosure statement and statement of principle. Some of these have led me to reform — in an important way — at least one part of the statement. I’ve reposted the statement in the extended entry below, but the key difference is in response to a great point made by Stuart Ballard. Doesn’t my rule, he asks, create perverse incentives? A simple way for an opponent to silence me — donate to, e.g., CC?

I plead humility as the only defense to this obvious omission: It never occurred to me that anyone would waste their money in that way. And while I believe the chance that an opponent would waste their money to silence me is tiny, I do hope that the NC principle becomes common, adopted by people for whom such an expenditure wouldn’t be a waste. I’ve therefore modified the principle as it applies to indirect donations — meaning donations to entities that indirectly benefit someone because they make him or her materially better off, or lessen a duty he or she has to those institutions: With respect to those donations, I will either not recommend a policy, or if I do, I will disclose the benefit.

This reformulation is in apparent tension with my rejection of disclosure generally. But as I see it now, this is the simplest way to avoid the (wholly unlikely) perverse incentive.

There were other useful comments, some of which I address here:

SethF: “not a disclosure statement.” Ok, how about a disclosure statement and a statement of principle.

redpop has a nice point about other influences which, s/he rightly observes, may also bend a policy recommendations. As s/he writes, “You seem to imply, for example, that you will, push someone else’s work if they push yours, regardless of whether you would otherwise do so.” If that is implied, I don’t mean the implication. We all have an obligation to be true to our principles. The general practice we adopt to police that obligation, however, is laissez faire. The NC principle is one compromise on that laissez faire approach — a rule that limits the potential for one kind of influence. But of course, one should avoid any inappropriate influence. In the list I spoke of in my original post, some influences I think are totally appropriate. Some are not. My only point is I’m not creating an additional rule to ferret the one from the other — beyond, again, money.

Jardinero1 thought his point not good enough without wrapping it in sarcasm. I disagree. He asks a very good question: “Which brings me to my point Professor: Who cares why you or anyone else shills?” First, my target is not me (alone). It is a profession(s). So why should we care “why … anyone else shills?” Great question, which goes the heart of what I see as the corruption here. We should avoid influences, in my view, that have nothing to do with the merits of the question at issue. For example: Imagine a doctor told you that you should try risky drug X for your life threatening condition. In my view, you should care whether your doctor is a stock holder in the company making the drug. Why? Because deciding what treatment is good for you is hard enough without the doctor weighing into the balance (or trying not to weigh into the balance) his own personal financial wellbeing. The same with professors. The same with politicians. All are called upon to make hard judgments. The extra-complexity of self-interest will not help them make those judgments well.

Which leads to the second point: In my view, if, e.g., a doctor recommends a drug, or even pushes the drug because he believes in it, so long as s/he has followed the NC principle, it is not “shilling.” In my view, a distinction must be drawn. Failing to draw such a distinction — by calling everything “shilling” — is a cover for more corruption.

Dan Collier asks about retirement benefits: “If so, statements about Google Books, for example, may directly impact Google share prices and indirectly effect your investments.” True enough. I don’t hold stock in individual companies. If I did, I would consider the same limitation to apply.

anon asks whether my list of board memberships was complete. It wasn’t, but now is. I’ve been a bad board member of MusicBrainz, and my guilt led me to forget it in the list. But the project is fantastic and shouldn’t be forgotten. My apologies.

I’ll think about this more as I read more. The disclosure and statement will be linked from my contact tab. Thanks again for the help.

extended entry

Following the good practice of others, and following suggestions of inconsistency by others, I offer the following disclosure statement.

How I make money

I am a law professor. I am paid to teach and write in fields that interest me. Never is my academic research directed by anyone other than I. I am not required to teach any particular course; I am never required or even asked by anyone with authority over me to write about a particular subject or question. I am in this important sense a free laborer.

I also get paid for some of my writing. I write books that are sold commercially. Three (and I hope soon all) of my books are also available freely in electronic form. I have been commissioned to write articles for magazines. But in all cases, while I may contract about the subject matter I will address, I never contract about the substance.

I have (though rarely) been paid to consult on matters related to my work. If I have, I conform my behavior to the NC Principle articulated below.

I am sometimes paid to speak. If I am, I will contract as to subject matter (e.g., whether the speech is about innovation, or copyright, or privacy, etc.). I do not contract as to substance. In addition to an honorarium, I also accept payment to cover travel expenses.

I am not compensated for my work with nonprofits.

Tech

I am a paying customer of Movable Type. Marc Perkel gives me a great hosting deal. If ever anyone sends me a product to review, I am resolved not to write about it.

Business Attachments

I have no regular clients. I am on board of a number of non-profits, including EFF, FSF, PLOS, Software Freedom Law Center, FreePress, PublicKnowledge, MusicBrainz, and Creative Commons.

I serve on no commercial boards. I don’t take stock-options to serve on boards or advisory boards.

The Non-Corruption (NC) Principle

It is a special privilege that I have a job that permits me to say just what I believe, and not what I’m paid to say. That freedom used to be the norm among professionals. It is less and less the norm today. Lawyers at one time had a professional ethic that permitted them to say what they believe. Now the concept of “business conflicts” — meaning, a conflict with the commercial interests of actual or potential clients — silences many from saying what they believe. Doctors too are hired into jobs where they are not allowed to discuss certain medical procedures (See, e.g., Rust v. Sullivan). Researchers at “think tanks” learn who the funders are as a first step to deciding what questions will be pursued. And finally, and most obviously, the same is true of politicians: The constant need to raise money just to keep their job drives them to develop a sixth sense about what sorts of statements (whether true or not) will cost them fundraising dollars.

With perhaps one exception (politicians), no one forces professionals into this compromise. (The exception is because I don’t see how you survive in politics, as the system is, without this compromise, unless you are insanely rich.) We choose the values we live by ourselves. And as the freedom I have to say what I believe is the most important part of my job to me, I have chosen a set of principles that limit any link between money and the views I express.

I call these principles “non-corruption” principles because I believe that behavior inconsistent with these principles, at least among professionals, is a kind of corruption. Obviously, I don’t mean “corruption” in the crudest sense. Everyone would agree that it is wrong for a global warming scientist to say to Exxon, “if you pay me $50,000, I’ll write an article criticizing global warming.” That is not the sort of “corruption” I am talking about.

I mean instead “corruption” in a more subtle sense. We all understand that subtle sense when we look at politicians. We don’t recognize it enough when we think about lawyers, doctors, scientists, and professors.

I want to increase this recognition, even at the risk of indirectly calling some of my friends “corrupt.” Norms are uncertain here. I hope they change. But until they change, we should not condemn those with differing views. We should engage them. I intend this to be the beginning of that engagement.

So, the NC principle:

The simple version is just this: I don’t shill for anyone.

The more precise version is this: I never promote as policy a position that I have been paid to advise about, consult upon, or write about. If payment is made to an institution that might reasonably be said to benefit me indirectly, then I will either follow the same rule, or disclose the payment.

The precise version need to be precisely specified, but much can be understood from its motivation: “Corruption” in my view is the subtle pressure to take views or positions because of the financial reward they will bring you. “Subtle” in the sense that one’s often not even aware of the influence. (This is true, I think, of most politicians.) The rule is thus designed to avoid even that subtle force.

So: “I never promote as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t do legal work for money. But everyone understands that when a lawyer speaks for his client, he speaks for his client. The corruption I am targeting is a lawyer or academic speaking not for a client, but presumptively, for the truth. And “promote” means in any public forum — so an op-ed, testimony, or a lecture.

that I have been paid “: “Paid” means directly or indirectly. “Directly” would be direct compensation to me, or support for my research, or other funding I otherwise wouldn’t have been entitled to. “Indirectly” means compensation to an entity that I was responsible for from an easily identified interest.

This line is hard to draw in many cases, but relatively easy to draw as it applies to me.

For example, I do no fundraising for my law school. My position, and the Center I run there, depends in no way upon my raising funds for either. Further, the commitment I have from my dean to support the Center is independent of any fundraising. As Dean Sullivan told me when she recruited me, “fundraising is my problem. Yours is to do the work.”

Thus, if you give a substantial amount of money to Stanford, you don’t, in my view, indirectly benefit me — because you have not made my life any different from how it was before you gave that money. (Indeed, given the hassle that usually runs with such gifts, you’ve likely made my life more difficult.)

Creative Commons presents a different question. A substantial contribution to Creative Commons — an entity which, as its CEO, I am responsible for — would, consistent with the NC principle, limit my ability to “recommend as policy a position” that was directly connected to the contributing entity.

So far, beyond the foundation grants CC has received, there have been two such “substantial” contributions to Creative Commons. With neither would I ever “recommend as policy a position” that benefited either — even if I believed, independently, that the position was correct. This doesn’t mean I wouldn’t help such people, or advise them. It simply means I would not publicly say something about their position, after such support was received.

I acknowledge one might well quibble with the “substantial” qualification here. Why not “any” rather than “substantial”? That may be the right position, at least ultimately. But as I view the matter now, the gifts beyond these two are so small as a proportion of CC’s budget that they don’t meaningfully change my work for CC at all.

to advise about, consult upon, or write about“: I mean this clause to include all the possible ways in which someone might try to make another person’s life better off financially. So sometimes people are paid money to write articles; sometimes special research programs are funded; sometimes a consulting fee is paid — all with the express promise that no “obligation” is intended. All of these count for purposes of this rule.

If payment is made to an institution that might reasonably be said to benefit me indirectly, then I will either follow the same rule, or disclose the payment.“: So the effect of this is to give me an option about whether indirect contributions result in silence by me or disclosure by me. Thus, if the RIAA gave CC $1m, I would decide either that I should not make policy recommendations that affect RIAA interests anymore, or that any such recommendations I make would be accompanied by disclosure.

But isn’t disclosure always enough?

Some would say this principle is too strict. That a simpler rule — indeed the rule that governs in most of these contexts — simply requires disclosure.

I don’t agree with the disclosure principle. In my view, it is too weak. The best evidence that it is too weak is the United States Congress. All know, or can know, who gives what to whom. That hasn’t chilled in the least the kind of corruption that I am targeting here. More generally: if everyone plays this kind of corruption game, then disclosure has no effect in stopping the corruption I am targeting. Thus, in my view, it is not enough to say that “Exxon funded this research.” In my view, Exxon should not be directly funding an academic to do research benefiting Exxon in a policy dispute.

(There is a difficult line here that turns upon practice. When I was at Chicago, professors received summer research grants. Those were awarded by the Dean. To make the funders happy, the professor would write “this research was supported by a grant by XXX.” But never was the money given in light of the work, and most of the time, it wasn’t till after you had finished something that you discovered who had “funded” the work. I don’t mean to be targeting this sort of behavior at all. Again, the funding the professor received was independent of the grant by XXX.)

What the NC principle is not

The NC principle is about money. It is not about any other influence. Thus, if you’re nice to me, no doubt, I’ll be nice to you. If you’re respectful, I’ll be respectful back. If you flatter me, I doubt I could resist flattering you in return. If you push causes I believe in, I will likely push your work as well. These forms of influence are not within the scope of the NC principle — not because they are not sometimes troubling, but because none of them involve money. I mean the NC principle only to be about removing the influence of money from the work of a professional. I don’t think there’s any need to adopt a rule to remove these other influences.

Why is money different from flattery, or being a liberal? Good question. Lots of obvious reasons. (For example, think about how hard these other “corruption principles” would be to implement: “I can’t support X because he supports the Democratic party, as I do.” “I can’t testify in favor of Y because its President said something nice about me.” Talk about perverse incentives…)

Someday I hope time will give me the opportunity to say more about why in depth. But for now, I mean only to specify the scope of my principle: It is a principle about isolating one form of influence from the work that I (and I hope my colleagues) do. We (in legal academics, and imho) get paid enough not to have to worry about selling testimony.

Thus, one friend wrote me with disappointment about something I wrote that could be viewed as a favor to someone else. So long as money is not involved, I’m all for this kind of favor. We should be doing favors for people we agree with all the time. Especially people on our side of the debate: we need to become at least as good as the other side in cultivating a community of support.

So what does all this promise?

If you believe I am following my principle, then you can still believe I am biased because I’m a liberal, or wrong because I’m an idiot, or overly attentive because I’m easily flattered, or under-attentive because I punish people who behave badly. All that the NC principle promises is that I am not saying what I am saying because of money.

As applied

I have been living these principles for many years. So my purpose here is not to announce any new policy. You can agree or disagree with the principles. You can believe them too strict, or not strict enough. They are significantly stricter than anything within the academy just now. No doubt, many may believe they are way too strict.

But whether you believe them too strict, or not strict enough, I would encourage you to engage them. Consistent with my NC principle, I will reward kindness and insight with at least kindness. I will ignore people whose argument style stopped developing in high school. But because this is an issue I very much want to continue to work on, the only thing for sure is I won’t accept money to consult around it. (And of course, there are millions throwing hundreds of millions at me to do this, so this is a REAL sacrifice.)

Finally, and again, I don’t offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have.

Posted in Uncategorized | 13 Comments

crossing languages with dotSub

I’ve been a fan of dotSub for sometime. The site enables collaborative subtitling of video. So far, the subtitling is just different languages. Very cool would be subtitling as commentary (think Pop-up video). Watch a CC video, or the infamous “my pirate kid” video from ARTE.de:


Posted in good code | Leave a comment

From Engadget: "Publishing exec 'steals' Google laptops in silly demonstration" — of just how little publishing executives understand

Engadget reports that “the head honcho of Macmillan Publishers” lifted a couple Google laptops at a recent BookExpo America, and then when he returned them, retorted “hope you enjoyed a taste of your own medicine,” and “there wasn’t a sign by the computers informing him not to steal them.”

So this betrays an astonishing level of ignorance, even for a “head honcho.”

Remember (and I did a 30 minute preso here to explain it) Google Books proposed to scan 18,000,000 books. Of those, 16% were in the public domain, and 9% were in copyright, and in print. That means, 75% of the books Google would scan are out of print but presumptively under copyright.

The publishers and Google already have deals for the 9%. And being in the public domain, no one needs a deal for the 16%. So the only thing the publishers might be complaining about is the 75% which are out of print and presumptively under copyright.

With respect to these, Google intends to index the books, and make them searchable. If a hit comes through the search engine, Google offers snippets of the text relevant to the search. The page includes links to libraries where the book might be borrowed; it includes links to book stores where the book might be purchased. And, I take it, if the “publishers” were to choose to publish the book again, it would also include a link to that publisher.

Finally, any author who wants to be removed from this index can be removed. As with Google on the net, anyone can opt out.

So vis-a-viz a computer sitting at a demonstration booth at a conference, is the “head honcho’s” action like Google’s?

Obviously not. And let us count the ways:

(1) Any such list must begin with the point obvious to all since the beginning of something called “IP,” but set to poetry by Jefferson. Read the full quote at the Connexions project. But the relevant line marking the difference here is this: “Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.” If the “head honcho” has Google’s computers, Google can’t use them. But if Google indexes out of print books, that does not — in the least — reduce the access anyone else has to the same property.

(2) A computer sitting at a marked booth at a conference is like the 9% in print, and under copyright. With respect to those, Google has deals with the publishers. So the “head honcho’s” action is more like offering in print, in copyright books for free, and in total — something Google is emphatically not doing.

(3) If the computer was not sitting at a market booth, but instead was in a trash dump (like, for example, the publishers out of print book list), or on a field, lost to everyone, then that fits the category of property that Google is dealing with. But again, Google doesn’t take possession of the property in any way that interefers with anyone else taking possession of the property. The publisher, for example, is perfectly free to decide to publish the book again. Instead, in this case, what Google does is more like posting an advertisement — “lost computer, here it is, is it yours?”

(4) Or again, imagine the computer was left after the conference. No easy way to identify who the owner was. No number to call. In that case, what would the “head honcho’s,” or anyone’s rights be? Well depending upon local law, the basic rule is finders keepers, loser weepers. There might be an obligation to advertise. There might be an obligation to turn the property over to some entity that holds it for some period of time. But after that time, the property would go to the “head honcho” — totally free of any obligation to Google. Compare copyright law: where the property can be lost for almost a century, and no one (according to the publishers at least) has any right to do anything with it. Once an orphan, the law of copyright says, you must be an orphan. No one is permitted to even help advertise your status through a technique like search engine.

(5) Or again, imagine the computer was a bank account in New York. And imagine, the bank lost track of the owner of the account. After 5 years, the money is forfeited to the state. Compare copyright: in New York state, a sound recording could be 100 years old, but no one has any freedom with respect to that sound recording unless the copyright owner can be discovered.

The list could go on, but the obvious point is this: Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I’ve been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government — which is saying a lot. And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.

Posted in bad code | 25 Comments

My cover is totally blown: "My Pirate Kid"

So I spend a great deal of my time insisting that my work, and the work of others in my “movement,” is about promoting something other than “piracy.” And indeed, I was in the middle of explaining exactly that to ARTE TV here in Germany when my cover was completely blown. Check out circa 5:10 in the video linked at the bottom of this page or download it here. (Thanks, Michael!)

Posted in Uncategorized | 5 Comments

Disclosure Statement (ala Joho)

Following the good practice of others, and following suggestions of inconsistency by others, I offer the following disclosure statement.

How I make money

I am a law professor. I am paid to teach and write in fields that interest me. Never is my academic research directed by anyone other than I. I am not required to teach any particular course; I am never required or even asked by anyone with authority over me to write about a particular subject or question. I am in this important sense a free laborer.

I also get paid for some of my writing. I write books that are sold commercially. Three (and I hope soon all) of my books are also available freely in electronic form. I have been commissioned to write articles for magazines. But in all cases, while I may contract about the subject matter I will address, I never contract about the substance.

I have (though rarely) been paid to consult on matters related to my work. If I have, I conform my behavior to the NC Principle articulated below.

I am sometimes paid to speak. If I am, I will contract as to subject matter (e.g., whether the speech is about innovation, or copyright, or privacy, etc.). I do not contract as to substance. In addition to an honorarium, I also accept payment to cover travel expenses.

I am not compensated for my work with nonprofits.

Tech

I am a paying customer of Movable Type. Marc Perkel gives me a great hosting deal. If ever anyone sends me a product to review, I am resolved not to write about it.

Business Attachments

I have no regular clients. I am on board of a number of non-profits, including EFF, FSF, PLOS, FreePress, PublicKnowledge, and Creative Commons.

I serve on no commercial boards. I don’t take stock-options to serve on boards or advisory boards.

The Non-Corruption (NC) Principle

It is a special privilege that I have a job that permits me to say just what I believe, and not what I’m paid to say. That freedom used to be the norm among professionals. It is less and less the norm today. Lawyers at one time had a professional ethic that permitted them to say what they believe. Now the concept of “business conflicts” — meaning, a conflict with the commercial interests of actual or potential clients — silences many from saying what they believe. Doctors too are hired into jobs where they are not allowed to discuss certain medical procedures (See, e.g., Rust v. Sullivan). Researchers at “think tanks” learn who the funders are as a first step to deciding what questions will be pursued. And finally, and most obviously, the same is true of politicians: The constant need to raise money just to keep their job drives them to develop a sixth sense about what sorts of statements (whether true or not) will cost them fundraising dollars.

With perhaps one exception (politicians), no one forces professionals into this compromise. (The exception is because I don’t see how you survive in politics, as the system is, without this compromise, unless you are insanely rich.) We choose the values we live by ourselves. And as the freedom I have to say what I believe is the most important part of my job to me, I have chosen a set of principles that limit any link between money and the views I express.

I call these principles “non-corruption” principles because I believe that behavior inconsistent with these principles, at least among professionals, is a kind of corruption. Obviously, I don’t mean “corruption” in the crudest sense. Everyone would agree that it is wrong for a global warming scientist to say to Exxon, “if you pay me $50,000, I’ll write an article criticizing global warming.” That is not the sort of “corruption” I am talking about.

I mean instead “corruption” in a more subtle sense. We all understand that subtle sense when we look at politicians. We don’t recognize it enough when we think about lawyers, doctors, scientists, and professors.

I want to increase this recognition, even at the risk of indirectly calling some of my friends “corrupt.” Norms are uncertain here. I hope they change. But until they change, we should not condemn those with differing views. We should engage them. I intend this to be the beginning of that engagement.

So, the NC principle:

The simple version is just this: I don’t shill for anyone.

The more precise version is this: I never recommend as policy a position that I have been paid, either directly or indirectly, to recommend.

The precise version need to be precisely specified, but much can be understood from its motivation: “Corruption” in my view is the subtle pressure to take views or positions because of the financial reward they will bring you. “Subtle” in the sense that one’s often not even aware of the influence. (This is true, I think, of most politicians.) The rule is thus designed to avoid even that subtle force.

So: “I never recommend as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t do legal work for money. But everyone understands that when a lawyer speaks for his client, he speaks for his client. The corruption I am targeting is a lawyer or academic speaking not for a client, but presumptively, for the truth. And “recommend” means in any public forum — so an op-ed, testimony, or a lecture.

that I have been paid directly“: This is the easy part of the principle. “Directly” means that I’ve received cash or other such compensation, or that I receive research support, or funding that I otherwise wouldn’t have been entitled to.

or indirectly“: This is a harder line to draw in general. The boundaries for me, however, seem pretty clear. In my view, I would be “indirectly” benefited if an institution I was responsible for got a significant benefit from an easily identified interest.

So, for example, I do no fundraising for my law school. My position, and the Center I run there, depends in no way upon my raising funds for either. Further, the commitment I have from my dean to support the Center is independent of any fundraising. As Dean Sullivan told me when she recruited me, “fundraising is my problem. Yours is to do the work.”

Thus, if you give a substantial amount of money to Stanford, you don’t, in my view, indirectly benefit me — because you have not made my life any different from how it was before you gave that money. (Indeed, given the hassle that usually runs with such gifts, you’ve likely made my life more difficult.)

Creative Commons presents a different question. A substantial contribution to Creative Commons — an entity which, as its CEO, I am responsible for — would, consistent with the NC principle, limit my ability to “recommend as policy a position” that was directly connected to the contributing entity.

So far, beyond the foundation grants CC has received, there have been two such “substantial” contributions to Creative Commons. With neither would I ever “recommend as policy a position” that benefited either — even if I believed, independently, that the position was correct. This doesn’t mean I wouldn’t help such people, or advise them. It simply means I would not publicly say something about their position, after such support was received.

I acknowledge one might well quibble with the “substantial” qualification here. Why not “any” rather than “substantial”? That may be the right position, at least ultimately. But as I view the matter now, the gifts beyond these two are so small as a proportion of CC’s budget that they don’t meaningfully change my work for CC at all.

But isn’t disclosure enough?

Some would say this principle is too strict. That a simpler rule — indeed the rule that governs in most of these contexts — simply requires disclosure.

I don’t agree with the disclosure principle. In my view, it is too weak. The best evidence that it is too weak is the United States Congress. All know, or can know, who gives what to whom. That hasn’t chilled in the least the kind of corruption that I am targeting here. More generally: if everyone plays this kind of corruption game, then disclosure has no effect in stopping the corruption I am targeting. Thus, in my view, it is not enough to say that “Exxon funded this research.” In my view, Exxon should not be directly funding an academic to do research benefiting Exxon in a policy dispute.

(There is a difficult line here that turns upon practice. When I was at Chicago, professors received summer research grants. Those were awarded by the Dean. To make the funders happy, the professor would write “this research was supported by a grant by XXX.” But never was the money given in light of the work, and most of the time, it wasn’t till after you had finished something that you discovered who had “funded” the work. I don’t mean to be targeting this sort of behavior at all. Again, the funding the professor received was independent of the grant by XXX.)

What the NC principle is not

The NC principle is about money. It is not about any other influence. Thus, if you’re nice to me, no doubt, I’ll be nice to you. If you’re respectful, I’ll be respectful back. If you flatter me, I doubt I could resist flattering you in return. If you push causes I believe in, I will likely push your work as well. These forms of influence are not within the scope of the NC principle because none of them involve money. I mean the NC principle only to be about removing the influence of money from the work of a professional. I don’t think there’s any need to adopt a rule to remove these other influences.

Why is money different from flattery, or being a liberal? Good question. Lots of obvious reasons. (For example, think about how hard these other “corruption principles” would be to implement: “I can’t support X because he supports the Democratic party, as I do.” “I can’t testify in favor of Y because its President said something nice about me.” Talk about perverse incentives…)

Someday I hope time will give me the opportunity to say more about why in depth. But for now, I mean only to specify the scope of my principle: It is a principle about isolating one form of influence from the work that I (and I hope my colleagues) do. We (in legal academics, and imho) get paid enough not to have to worry about selling testimony.

Thus, one friend wrote me with disappointment about something I wrote that could be viewed as a favor to someone else. So long as money is not involved, I’m all for this kind of favor. We should be doing favors for people we agree with all the time. Especially people on our side of the debate: we need to become at least as good as the other side in cultivating a community of support.

So what does all this promise?

If you believe I am following my principle, then you can still believe I am biased because I’m a liberal, or wrong because I’m an idiot, or overly attentive because I’m easily flattered, or under-attentive because I punish people who behave badly. All that the NC principle promises is that I am not saying what I am saying because of money.

As applied

I have been living these principles for many years. So my purpose here is not to announce any new policy. You can agree or disagree with the principles. You can believe them too strict, or not strict enough. They are significantly stricter than anything within the academy just now. No doubt, many may believe they are way too strict.

But whether you believe them too strict, or not strict enough, I would encourage you to engage them. Consistent with my NC principle, I will reward kindness and insight with at least kindness. I will ignore people whose argument style stopped developing in high school. But because this is an issue I very much want to continue to work on, the only thing for sure is I won’t accept money to consult around it. (And of course, there are millions throwing hundreds of millions at me to do this, so this is a REAL sacrifice.)

Finally, and again, I don’t offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have.

Posted in eye | 12 Comments

for the record

After my debate last week at CISAC (at Google Video here), The Register published a piece (archived) about the event. I’ve received a bunch of angry email about what was reported in that piece. The relevant quotes offered in the Register’s article, however, are not correct.

First, The Register writes that I said: “I have two lives,” he said. “One is in Creative Commons…the other is in litigation against authors.”

In fact, I said: “I have two lives in this. One is leading Creative Commons. And the other [is leading] litigation which is , I’m sure, in conflict with the views of many people about copyright.” Listen to the clip here: mp3, ogg.

Second, The Register also wrote that I said: “No one at Creative Commons has attacked authors.” That’s certainly true. No one working at Creative Commons has ever “attacked authors.” However true, the quote is not what I said.

In fact, I said: “Nobody who works for Creative Commons has ever attacked collecting rights societies in the way you described.” Listen to the clip here: mp3, ogg.

Third, The Register wrote that I said: “I assert that there is no fundamental disagreement between the objectives of the societies and the objectives of Creative Commons.” This caused many from the “movement” to complain that in fact there were important conflicts between Creative Commons and Collecting Rights Societies.

In fact, what I said was: “I assert that there is no fundamental disagreement between the objectives of the Collecting Rights Societies, as you’ve described them and the objectives of what Creative Commons is trying to do.” The qualification is important, because Brett Cottle had described compromises that Collecting Rights Societies were making to fit with the digital age. While I don’t believe it’s accurate that all Collecting Rights Societies have been as progressive as Mr. Cottle suggests, I do believe that if they were, there would be “no fundamental disagreement” between them and our objectives. Listen to the clip here: mp3, ogg.

Fourth, some complained that I had referred to the work of creators who don’t intend their creative work to be licensed commercially as “a secondary class of creators.” Actually, of you read The Register’s piece carefully, you’ll see that the first time that quote is used it states “a second class of creators.” The second time it appears “second” has morphed into “secondary.”

All I meant to do was to distinguish one class of creators — professionals, who create for money — from a second class of creators — those who create for the love of creating, and not for the money. I did not say that these creators were of a second class. Indeed, my whole point was that these creators too deserved “respect.” That point is conveyed quite accurately by the International Herald Tribune piece about the same debate.

Finally, The Register wrote something that has led at least one blogger to believe that I am employed by Google. I don’t think a charitable interpretation of what The Register wrote could support that reading. But to the extent it does, let me state clearly that I am not employed by Google. Nor do I represent them. The suggestion of a conflict in The Register’s piece has, however, led me to craft a disclosure statement that I should have published (ala Dave Weinberger and Ethan Zuckerman and Dana Boyd) long ago. I will post that statement tomorrow.

Posted in bad code | 7 Comments

On the Helprin reply: Wow

So I posted the entry calling on people to write a reply to the Helprin piece, and then got on a plane in Boston. When I landed in Frankfurt, I got an email: “Wow! Pretty amazing wiki article.” And indeed it was (and is) — filled with useful facts and ideas, structured and accessible. A real improvement on the Lessig-averages no doubt.

I would have focused the attack in much the same way, though with some differences in emphases. In my view, the right answer comes not so much from careful attention to the metaphysics of property, but from a practical consideration of the burdens of different copyright systems. Where we know that after a very short time, the vast majority of work has no continuing commercial value at all, and that after a relatively short period of time, we’ve provided authors with all the incentives to create they could possibly need, what justification is there for the continued burden of copyright regulation? That question leads some to say “none,” and others to say (ala Posner), “well, at least require those wanting an additional term to take affirmative steps to claim it.” But all who adopt this practical perspective conclude the term should be well short of infinity.

The other thing that struck me about the essay was a point that often gets lost in the rhetoric around “originality” and “remix.” This debate is often couched in terms of “respect” for the author. The problem with the remixer, I’ve been told again and again, is that he doesn’t respect the author.

But compare Helprin’s piece with Jonathan Lethem’s, “The Ecstasy of Influence.” Lethem’s is constructed through the words of others. Helprin’s barely cites anyone. Yet Helprin’s topic is perhaps the most familiar in the history of copyright law. There must be a thousand interesting places where people have considered the same issue, and provided interesting, and compelling responses. (One favorite is Nimmer’s: “If I may own Blackacre in perpetuity, why not also Black Beauty? The answer lies in the first amendment. There is no countervailing speech interest which must be balanced against perpetual ownership of tangible real and personal property. There is such a speech interest, with respect to literary property, or copyright.” Melville B. Nimmer, Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?, 17 UCLA L. Rev. 1180, 1193 (1970).)

Yet Helprin doesn’t bother with what others have written. He wakes up one morning puzzled by a feature of law that has been with us for more than two centuries, and rather than research the question a bit, or think about it in light of what others have said, he just fires off an op-ed to the New York Times.

Now between Lethem’s piece (pure remix) and Helprin’s (pure Helprin), which is more respectful of authorship?

Posted in free culture | 29 Comments

Keen's "The Cult of the Amateur": BRILLIANT!

Tomorrow is the official on-sale date for Andrew Keen’s “The Cult of the Amateur,” but the book is already getting lots of attention. Keen, a writer, and failed Internet entrepreneur, spends 200 pages attacking the rise of the “amateur” and the harm — economic, social, cultural and political — these amateurs will cause. Without “standards,” without “taste,” without “institutions” to “filter” good from bad, true from false, the Internet, Keen argues, is destined to destroy us.

There’s much in the book that even we amateur-o-philes should think about. How can we build trust into the structures of knowledge the Internet is enabling (Wikipedia, blogs, etc.)? How can make sure the contribution adds to understanding rather than confuses it? These are hard questions. And as is true of Wikipedia at each moment of every day — there is more work to be done.

But what is puzzling about this book is that it purports to be a book attacking the sloppiness, error and ignorance of the Internet, yet it itself is shot through with sloppiness, error and ignorance. It tells us that without institutions, and standards, to signal what we can trust (like the institution (Doubleday) that decided to print his book), we won’t know what’s true and what’s false. But the book itself is riddled with falsity — from simple errors of fact, to gross misreadings of arguments, to the most basic errors of economics.

So how could it be that a book criticizing the Internet — because the product of a standardless process where nothing is “vetted for accuracy” (as he says of Wikipedia) — could itself be so mistaken, when it, presumably, has been “vetted for accuracy” and was only selected for publication because it passed the high standards of truth imposed by its publisher — Doubleday?

And then it hit me: Keen is our generation’s greatest self-parodist. His book is not a criticism of the Internet. Like the article in Nature comparing Wikipedia and Britannica, the real argument of Keen’s book is that traditional media and publishing is just as bad as the worst of the Internet. Here’s a book — Keen’s — that has passed through all the rigor of modern American publishing, yet which is perhaps as reliable as your average blog post: No doubt interesting, sometimes well written, lots of times ridiculously over the top — but also riddled with errors. Keen’s obvious point is to show those with a blind faith in the traditional system that it can be just as bad as the worst of the Internet. Indeed, one might say even worse, since the Internet doesn’t primp itself with the pretense that its words are promised to be true.

So lighten up on poor Mr. Keen, folks. He is an ally. His work will help us all understand the limits in accuracy, taste, judgment, and understanding shot through all of our systems of knowledge. The lesson he teaches is one we should all learn — to read and think critically, whether reading the product of the “monkeys” (as Keen likens contributors to the Internet to be) or books published by presses such as Doubleday.

I’ve outlined some of these errors in the Extended Entry below. I’ve also placed that enumeration on a wiki, and I invite everyone to help construct the The Keen Reader — listing and demonstrating the errors in his book, so others can see quite clearly just how brilliant a self-parody this book is.

Extended Entry

The Least Important (Lessig) Fallacy

I expect this is true with anyone whose work is described by others, but I had a pretty clear sense of the care and accuracy of Keen’s book early on, when he wrote this about my own work:

In a twisted kind of Alice in Wonderland, down-the-rabbit-hole logic, Silicon Valley visionaries such as Stanford law professor and Creative Commons founder Lawrence Lessig and cyberpunk William Gibson laud the appropriation of intellectual property. (p24)

I take it Keen means “misappropriation,” because while I do “laud the appropriation of intellectual property” in the sense that I support, for example, the legal licensing of creative work by others, so does Keen. So his claim is that I praise what some call “piracy.”

This is a claim too ridiculous to have to rebut. I certainly have argued in favor of changing the way copyright law functions. But I never have “laud[ed]” “piracy.” See, e.g., Lawrence Lessig, Free Culture 10, 18, 62, 63, 64, 65, 66, 139, 255 (2004) (describing “piracy” as “wrong”). Only the most careless of readers could make such a claim.

Likewise, midway through the book, Keen writes:

Stanford University law professor Lawrence Lessig argues that “legal sharing” and “reuse” of intellectual property is a social benefit. In fact, … Lessig wants to replace what he calls our “Read-Only” Internet with a “Read-Write” Internet, where we can “remix” and “mashup” all content indiscriminately. Lessig, misguided as he is, suggests that digital content—whether it be a song, a video, a short story, or a photograph—should be commonly owned for the benefit of everyone. What Lessig fails to acknowledge is that most of the content being shared—no matter how many times it has been linked, cross-linked, annotated, and copied—was composed or written by someone from the sweat of their creative brow and the disciplined use of their talent. (p144)

Let’s unpack this a bit:

(1) “Lessig argues that “legal sharing” and “reuse” of intellectual property is a social benefit.”

True enough. “Legal sharing” (as opposed to “illegal sharing”) is a social benefit. Reuse of IP is also a social benefit. Does Keen think the opposite? Should we ban “legal sharing”? And should a song only be “used” once?

(2) “In fact, … Lessig wants to replace what he calls our “Read-Only” Internet with a “Read-Write” Internet, where we can “remix” and “mashup” all content indiscriminately.”

Not true enough. I have no desire to “replace” “our Read-Only Internet” with anything. As I try to say every time I talk about it, the RO Internet is valuable and good. I do praise the rise — or more accurately, the revival — of a RW culture, sure. But “indiscriminately”? Who ever argues for “indiscriminate” use? Certainly the examples I use and praise are quite discriminate in their “remix” of culture. That’s why they are so good.

(3) “Lessig, misguided as he is, suggests that digital content—whether it be a song, a video, a short story, or a photograph—should be commonly owned for the benefit of everyone.”

First, I was very disappointed that in the published version of Keen’s book, he changed this quote from what it was originally. Originally, I was not only “misguided” but “dangerous.”

But second, again, come on. No where do I argue that “digital content … should be commonly owned.” This is about as ignorant a summary of my work as one could proffer. I defend again and again (against copyright abolitionists) the value and importance of copyright. I argue that copyright must be preserved, even in a digital age. Even the Creative Commons project doesn’t argue that works be “commonly owned.” CC gives copyright owners the ability to exercise their rights, not common rights.

(4) “What Lessig fails to acknowledge is that most of the content being shared—no matter how many times it has been linked, cross-linked, annotated, and copied—was composed or written by someone from the sweat of their creative brow and the disciplined use of their talent.”

Another brilliant example of Keen’s self-parody. If you read this quickly, you might think that Keen is saying that an author creates wholly on his own, without building upon the work of others. But read again, and this time carefully: Note the pronoun “their.” Keen’s talking about the collective process that creativity always is. That at least is the charitable way to read the sentence. Otherwise, you’d have to say Keen doesn’t know basic grammar.

But misunderstanding my work isn’t much of a sin. Many brilliant sorts do that all the time (read, for example, the exams from classes I teach. Talk about a humbling experience…). The significant errors in Keen’s book are elsewhere.

I outline some of them here:

The “value” fallacy

Keen has a less than keen understanding of economic value. Indeed, the sort of understanding that would fail first year economics. See, for example, his attack on Google. As he writes,

Take Google, for example, the economic paragon of a truly successful Web 2.0 media company. With a market cap of approximately $150 billion, the Silicon Valley company took in $6.139 billion in revenue and $1.465 billion in profits in 2005. Telling is the fact that unlike companies such as Time Warner or Disney that create and produce movies, music, magazines, and television, Google is a parasite; it creates no content of its own. (p135)

In terms of value creation, there is nothing there apart from its links. (p135)

Why stop at Google? Why not attack, for example, the creators of phone books. They too are simply “parasites” “creat[ing] no content of [their] own.” But this argument is ridiculous. “Value” is created in both cases by improving the efficiency of access to others, or to their material. Efficiency is value.

The efficiency fallacy

Much like the previous error, Keen systematically ignores dynamic efficiency in favor of static loss. So, for example, he writes,

“What you may not realize is that what is free is actually costing us a fortune.” (p27)

And as he continues:

Of course, every free listing on Craigslist means one less paid listing in a local newspaper. Every visit to Wikipedia’s free information hive means one less customer for a professionally researched and edited encyclopedia such as Britannica. Every free music or video upload is one less sale of a CD or DVD, meaning one less royalty for the artist who created it. (p29)

There are at least three obvious errors here. First, Keen is apparently lumping two obviously legal changes (Craigslist and Wikipedia) with one not so legal (“free music or video upload”) though of course, not all “free music” or “video uploads” are illegal.

Second, not even the RIAA suggests that there is a 1 to 1 substitution between “free” and “paid.”

But third, and most significant, Keen writes as if there is an economic loss when people get to do things more efficiently. As if there is a reason for a policy maker to be concerned when, for example, the costs of some activity drop because society has found a way to do the same activity more efficiently. He points, for example, in the context of printed books, to the many people who have earned a living from that lumber-ware. He asks: ” Isn’t this a model worth preserving?” (p115)

Again, econ 101: Thousands used to work to support circuit switched networks. Many fewer are needed to run packet switched networks. Does that mean we should ban the Internet in order to “preserve” circuit switched telephone networks? Every new and more efficient technology displaces less efficient economies before them. How many of those should we “preserve”?

Or perhaps, my favorite quote. Again, remember, this is in a book attacking the Internet for its lack of truth and failure of “balance”:

Every defunct record label and round of newspaper downsizing are a consequence of “free” user-generated Internet content—from Craigslist’s free advertising, to free music videos, to free encyclopedias, to free weblogs. (p27)

Every? Really? It’s the sort of claim that would earn a freshman essay a D.

The wiki fallacy

Keen spends a great deal of time attacking Wikipedia, and its founder, Jimmy Wales. As Keen writes, “Wikipedia … is almost single-handedly killing the traditional information business.” (p127-8). I take it not even Wales would exaggerate the importance of Wikipedia like this. And again, implicit in Keen’s argument is the efficiency fallacy mentioned above.

But the real error here is betrayed in the following:

Since Wikipedia’s birth, more than fifteen thousand contributors have created nearly three million entries in over a hundred different languages—none of them edited or vetted for accuracy (p4).

“None of them edited or vetted for accuracy”? On one level, of course, this is absurdly false. Wikipedia is constantly edited, and attributions constantly vetted for accuracy. Indeed, for many of the articles, the level of editing and vetting is vastly greater than any article published in any encyclopedia ever.

But on a different level, what Keen must mean is that it is not “edited” or “vetted” by experts. Or exclusively by experts (for again, experts certainly participate in Wikipedia). This is related to Keen’s obsession (indeed, I’m sure if he has one, his shrink must have a field day with this obsession) with “experts” and makers of “taste.” So central is this to Keen’s argument, it deserves its own heading.

The Expert Fallacy

The most pronounced theme throughout the book is the faith in the “experts” of the non-Internet world. Consider some sample quotes:

But what had once appeared as a joke now seems to foretell the consequences of a flattening of culture that is blurring the lines between traditional audience and author, creator and consumer, expert and amateur. (p2)

Because democratization, despite its lofty idealization, is undermining truth, souring civic discourse, and belittling expertise, experience, and talent. (p15)

Yes, a number of Web 2.0 start-ups such as Pandora.com, Goombah.com, and Moodlogic.com are building artificially intelligent engines that supposedly can automatically tell us what music or movies we will like. But artificial intelligence is a poor substitute for taste. (p.32)

Recently, Jurgen Habermas, one of Europe’s most influential social thinkers, spoke about the threat Web 2.0 poses to intellectual life in the West.” The price we pay for the growth in egalitarianism offered by the Internet is the decentralized access to unedited stories. In this medium, contributions by intellectuals lose their power to create a focus.” (p55)

But what these online stores don’t have is the deeply knowledgeable buying choices depend upon the anonymous Amazon.com reviewer—a very poor substitute for “the bodily encounters” that Tower once offered.(p132)

When media companies flounder, employees and executives lose their jobs and shareholders lose their investments. But all the rest of us lose out, too, as the quality of programming is compromised. (p124-25)

Keen is particularly harsh about the effects on democracy:

The downside of all this “democracy,” which the Washington Post’s Robert Samuelson described as the “greatest outburst of mass exhibitionism in human history” is the integrity of our political discourse. (p54)

The YouTubification of politics is a threat to civic culture. It infantilizes the political process, silencing public discourse and leaving the future of government up to thirty-second video clips shot by camcorder-wielding amateurs with political agendas.(p 68)

Or consider one final favorite:

“News aggregating sites like Digg or Reddit or Rojo, which rely on the collective behavior of other users, also limit our access to fair and balanced information.” (p93).

Ok, let’s take this in reverse order. How exactly is someone “limit[ed]” from access to “fair and balanced” (I assume Keen got permission to use Fox’s trademark here) by the presence of a ranking system? Does USA Today’s ranking of movies limit my access to films its reviewers don’t like?

Or on politics: The Internet is challenging “the integrity of our political discourse”? This assumes a fact not in evidence — namely the “integrity of our political discourse.” Is FOX News part of that discourse? Were the Swift Boat Veterans the product of the Internet?

Or on taste generally: No doubt, public intellectuals like Habermas are not happy with the rise of competition for the attention the public gives to his words. Ah, for the good old days, when a handful of writers got to tell the world how to think. How sad it is that those writers now must compete with blogs.

But whether victims of competition are happy or not doesn’t determine the quality of the competition. In my view, there’s little evidence of “taste” in the product of “media companies.” Do I get to publish a book with Doubleday now that I’ve observed I don’t like what media companies produce?

The argument about taste is either ridiculous or banal. Who is Keen to define what “taste” is. And if he isn’t doing that, then yes, of course, there are millions of places in which society choses things that I, or others, don’t like. Let’s start with democracy. Is that an argument against democracy?

(And really: did Keen ever go into a Tower Records and ask for a recommendation about a Mahler symphony? Or about anything? No doubt, there were some great people at Tower Records. But on average?)

The “Piracy” fallacy

A couple notes about a familiar fallacy: Keen writes:

Thanks to the rampant digital piracy spawned by file-sharing technology, sales of recorded music dropped over 20 percent between 2000 and 2006 (p8)

Sloppy: what percentage of the 20% is because of “piracy”?

And:

At the iTunes price of 99 cents a song, the 20 billion digital songs stolen in a single year adds up to an annual bill of $19.99 billion, one and half times more than the entire $12.27 billion revenue of the US sound recording industry in 2005. That’s $19.99 billion stolen annually from artists, labels, distributors, and record stores. (p106)

Wildly exaggerated: Not even the RIAA uses retail prices to estimate the losses from “piracy”

Over the last 10 years, the listening hours of eighteen to twenty-four year olds have dropped 21 percent. (p123)

Sloppy: what percentage of the 21% is because of “piracy”?

What author reading any of the works written recently about this question could be so sloppy?

The Amateur Fallacy

The final fallacy I’m going to take the time to enumerate is perhaps the most amazing. Here is a book about “amateurs”. And here is how Keen defines the term “amateur”:

The traditional meaning of the word “amateur” is very clear. An amateur is a hobbyist, knowledgeable or otherwise, someone who does not make a living from his or her field of interest, a layperson, lacking credentials, a dabbler. George Bernard Shaw once said, “Hell is full of amateur musicians,” but that was before Web 2.0. Today, Shaw’s hell would have broadband access and would be overrun with bloggers and podcasters. (p36)

This is a very distinctive view of the “amateur.” It is not, however, quite the “traditional meaning of the word.” The OED defines an amateur as follows:

1. One who loves or is fond of; one who has a taste for anything.; 2. a. One who cultivates anything as a pastime, as distinguished from one who prosecutes it professionally; hence, sometimes used disparagingly, as = dabbler, or superficial student or worker. b. Often prefixed (in apposition) to another designation, as amateur painter, amateur gardener.; 3. a. Hence attrib. almost adj. Done by amateurs. Cf. amateur gardener with amateur gardening.; b. Used disparagingly. Cf. sense 2.

Keen’s thus relying upon not the “traditional meaning” (which I agree is “clear”), but on a “sometimes used disparaging” meaning. No doubt that meaning is also clear. But it is far from the ordinary sense of the word, and indeed, far from its origin, which is one who does what he does for the love of what he does, and not for the money.

It is an interesting fact about what our culture has become that we can so quickly be led away from this original meaning to the disparaging. Shaw notwithstanding, it was not always so obvious that an amateur should be belittled. Consider, for example, the words of John Phillip Sousa. In an essay criticizing the rise of “mechanical music,” Sousa laments the lost of capacity in ordinary citizens to create and share music:

“This wide love for the art springs from the singing school, secular or sacred; from the village band, and from the study of those instruments that are nearest the people. There are more pianos, violins, guitars, mandolins, and banjos among the working classes of America than in all the rest of the world, and the presence of these instruments in the homes has given employment to enormous numbers of teachers who have patiently taught the children and inculcated a love for music throughout the various communities. [And when machines produce music?] And what is the result? The child becomes indifferent to practice, for when music can be heard in the homes with-out the labor of study and close application, and without the slow process of acquiring a technic, it will be simply a question of time when the amateur disappears entirely… The tide of amateurism cannot but recede, until there will be left only the mechanical device and the professional executant.” Sousa, The Menace of Mechanical Music, Appleton’s Magazine 9 (1906).

Sousa is lamenting exactly the dynamic that Keen is praising — the loss of “amateurism” from our culture. And I take it Keen would be praising what Sousa laments — the disappearance of this amateur culture.

I’m with Sousa on this, and quite against Keen. I think it is a great thing when amateurs create, even if the thing they create is not as great as what the professional creates. I want my kids to write. But that doesn’t mean that I’ll stop reading Hemingway and read only what they write. What Keen misses is the value to a culture that comes from developing the capacity to create — independent of the quality created. That doesn’t mean we should not criticize works created badly (such as, for example, Keen’s book, at least if you don’t adopt the self-parody interpretation of it). But it does mean you’re missing the point if you simply compare the average blog to the NY Times.

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