James Boyle On: Strategies For The Digital Age: Beyond Mocking the Clueless

from the fun-though-it-is dept

With our CwF + RtB experiment in full swing, we’ve asked some of the participants involved to provide some guest posts. The post here is from James Boyle, whose book, The Public Domain is a part of our Techdirt Book Club (signed by Boyle). If you order both the Techdirt Book Club and the Techdirt Music Club before midnight PT, August 3rd, we’ll throw in a free Techdirt hoodie, or a free lunch with Mike. We asked Boyle to give his thoughts on new media business models from his perspective, and he came back with this incredibly thought-provoking post that ought to create quite a bit of conversation:

The Associated Press recently released the details of their plan to develop a new metadata/Digital Rights Management format for news stories. (It wasn’t described as DRM, but I agree with Techdirt that it certainly sounds that way.) Particularly ominous was this phrase "The system will register key identifying information about each piece of content that AP distributes as well as the terms of use of that content, and employ a built-in beacon to notify AP about how the content is used." (My italics) Even those without a strong dose of civil libertarian paranoia might bridle at the thought of having their practices of reading and sharing newspaper articles tracked by a central repository (other than Google, that is.) "He sure is reading a lot of articles about gay rights!" Pamela Samuelson calls DRM’d articles "texts that rat on you." Somehow it doesn’t sound like a good slogan for a sales campaign. (AP says it has no interest in tracking on the individual user level.)

The response of the tech-savvy was,

predictably, pretty savage. Techdirt ("it’s difficult to think of anything quite this useless") at least offered some principles on which sustainable web businesses might be built. Others were not as kind. Someone even created an extremely profane and sometimes juvenile, but nevertheless quite funny anonymous graphical translation of the AP’s diagram to explain the new plan. The criticisms of the plan (clueless graphics aside) centered around two tenets that are familiar to Techdirt readers.

  1. an argument that DRM is a.) doomed to fail technologically and b.) has in fact already failed in social and economic practice. The general line here is that the arc of history bends towards technologies that are copy-friendly and anything that tries to turn that feature into a bug will soon fail if it hasn’t already.
  2. an assertion that "old media" (other names include "the clueless" "dinosaurs"

    "non digital natives" "the walking dead" etc.) are demonstrably incapable of understanding the potential upside of the sharing economy, or copy-friendly technologies, still less the business models that can be built on top of them. This tenet is so sweeping that it would be much harder to defend if history didn’t give us such fabulous anecdata to back it up. My own favourite quote was about the technology that lowered the cost of copying in a prior technological era, "The VCR is to the movie industry what the Boston strangler is to the woman alone." That was Jack Valenti, the late head of the MPAA. Actually, unless the answer to that puzzle is "What is a savior?" Mr. Valenti would turn out to be wrong. Movie rentals to fill the — cheap — VCR’s that the movie industry had failed to criminalize, tax or enjoin soon provided more that 50% of the industry’s revenue.

Personally, I am at best agnostic

about tenet #1. I am not a technological determinist. I think that DRM has failed spectacularly in some areas (root kits on CD’s), provoked mild irritation and a pressure towards more open alternatives in others (the move towards selling open MP3’s rather than protected streams or DRM’d iTunes tracks) and become standard (even if not loved) in others. Most of you are still being forced to watch the FBI warnings on your DVD’s and fuss with region control. Sure you could get around it. But how many people bother to? Life is too short. I do think news is a particularly bad candidate for DRM or even "beacons," but that is a specific judgement not a general one.

On tenet #2, I think we are thinking

too narrowly. Behavioral economists have identified specific deviations from economic rationality in human psychology– we tend to value potential losses asymmetrically from potential gains, to use simple heuristics even when they are shown to be false and so on. In my new book, The Public Domain (freely available online, of course) I argue that we have a measurable cognitive bias against "openness" — I call it cultural agoraphobia, and I argue that it impedes us in understanding the creative potential, productive processes and forms of social organization that the web makes possible. The source of that bias (by which I mean a demonstrated tendency to ignore certain kinds of possibilities in a way that the data does not support) probably lies in the fact that most of our experiences with property come from physical goods — sandwiches that 1000 people cannot share, absent divine intervention, fields that might be overgrazed or underused if not subject to single entity control. Even digital natives still spend most of the hours of their day in a world in which goods are both "rival" and "excludable." Reflexes picked up in that world tend to lead us astray when we are dealing with the kind of property that lives on networks. "Like astronauts brought up in gravity, our reflexes are poorly suited for free fall."

I would even argue that this cognitive bias, even more than industry capture of regulators, is one reason why our current intellectual property policy is so profoundly and utterly misguided. But its implications are wider still.

So far, this sounds similar to the

standard technophilic critique of existing institutions — albeit with a behavioral psychology chaser. But it isn’t. Just because it’s a bias doesn’t mean it’s always wrong. It may be that, even once one discards the bias, there may be no immediately obvious way of carrying important social functions into the world of the Net. I don’t care where on the techno-optimist spectrum you are (It ranges from "get their eyeballs and their wallets will surely follow" to "the only alternative you seem to be proposing is Google ads, cover charges and lots of T-shirts.") Unless you believe that markets spontaneously self-correct for everything (hint, check your IRA balance before you answer this question) you have to acknowledge that the problem that the AP is responding to may be our problem (how to pay for the kind of expensive investigative journalism that is a real boon to democracy and liberty) as well as their problem (how not to die in the immediate future.)

Don't get me wrong.  The world of the

future will clearly have media that in some respects are far better than what we have today, even when measured against the most rigorous standards. I am pretty sure, in the world of 2020, pollution levels in Silicon Valley and school performance in Palo Alto will be covered with a wealth of data, expert systems, and interactive mapping in a way that would have seemed a dream in 1990. That will be true for most areas that have wealth, a wealth of data, and a highly educated citizenry with lots of personal liberty and strong personal and ethical reasons to be focused on a particular subject. It will be much less true for areas where those conditions do not hold true, particularly if you have a powerful in-group with strong reasons to want to keep the eyes of the world away. Twitter and the camera phone can do a lot. But they can provide neither the culture of professional journalism, nor the sustained effort and resources to develop a story over years. And there is an oft unnoticed corollary to the claim that the dinosaurs are clueless. It means they are unlikely to solve the problems themselves. Unless you think that markets and technologies spontaneously self-correct for everything, that leaves the rest of us.

In Robert Putnam's fascinating book

Bowling Alone he describes the way in which the threads of civil society and of trust frayed during the 20th century — and offered a convincing social science case that the implications were profoundly negative for our culture. But the book was not a depressive one. Putnam pointed back to the turn of the 20th century. Then, as now, people noticed their society changing around them — industrialization, the acceleration of migration to cities, urban isolation. But Putnam points out that this prompted an extraordinary entrepreneurialism in civil society. Groups were founded that today seem quaint to us — the Kiwanis. the Rotarians and so on — all aimed specifically and solving this failure of civil society. The message was not, in other words, that these problems would self correct through markets and technology. It was that we would need an entrepreneurialism outside the market — one that experimented with institutions and communities to solve the problems of the day. For me, a glance at AP’s DRM business plan prompts the same thought. Some of the functions that newspapers now perform are going to be located elsewhere in society — in universities, in foundations, in government, in blogs. Some of that will happen spontaneously — but a lot of it will not unless we innovate in social organization the same way the citizens of the early 20th century did to meet the problems of urbanization.

I was

lucky enough to be involved with Creative Commons from its inception and to help found Science Commons and ccLearn. Those organizations were designed to solve a particular problem for which there was a market and legal gap — the problem of failed sharing. Jesse Dylan’s brilliant video

on the subject explains it better than I could. Are there equivalent institutional innovations that could help in the area of news gathering? I don’t know. Journalism isn’t my field. But without the kind of institutional innovation and experimentation in civil society that Creative Commons (or the Kiwani’s) represented, I think that we are unlikely to solve its problems. Web 2.0 business methods alone, even with a Techdirt crystal ball, will not be enough. If I am right, mocking the clueless will be a poor consolation.

James Boyle is William Neal Reynolds Professor of Law at Duke and the author of The Public Domain: Enclosing the Commons of the Mind. He writes a regular column for the Financial Times and tweets sporadically as thepublicdomain.

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Companies: associated press

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Comments on “James Boyle On: Strategies For The Digital Age: Beyond Mocking the Clueless”

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Richard says:

Why AP believe their system might actually work

My guess is that AP believe their system works as follows:

1. Assume that the metadata that assists searching makes metadata-enabled stories MUCH more usable than those just containing the human readable part.

2. Assume that the search metadata can somehow be locked to the DRM metadata so you can’t have the one without the other

3. AP can now find everyone who is posting such stories on the net and know where they have got the story from – and hence make sure that AP gets paid.

Of course if someone re-writes the story and generates their own version of the metadata it still falls down – but on this model I can see how AP have managed to fool themeselves (I fooled myself for a good 5 minutes!)

Ryan says:


1) I can’t speak for everyone else, but I long ago decided that I would not spend money on anything DRM. And the more incidents that occur like Amazon retroactively removing 1984 from Kindles, the stronger my sentiment is reinforced. If Internet comments are any indication, a lot of others feel the same way.

2) You seem to be narrowly defining the news market as only the currently established major players, and subsequently come to the conclusion that it will not spontaneously adjust to coming world. While I agree that many newspapers will go the way of the RIAA, I don’t see sufficiently large barriers to entry that some person or organization with funds cannot come in to fill a void created by a major newspaper failure. Closed markets do not necessarily spontaneously adjust; open markets do. Saying that somebody will always come along to satisfy those elements with significant overhead(sending journalists abroad to Iraq, for instance) does not mean that those people have to be in the general 2.0 user base. Or maybe I misunderstood?

Anonymous Coward says:

Mike, a rare congrats from me on posting up and article by a third party that doesn’t toe the techdirt line.

“Unless you believe that markets spontaneously self-correct for everything (hint, check your IRA balance before you answer this question) you have to acknowledge that the problem that the AP is responding to may be our problem (how to pay for the kind of expensive investigative journalism that is a real boon to democracy and liberty) as well as their problem (how not to die in the immediate future.)”

This is truly the key in all of this. You still want cake, but you don’t want to pay anyone to bake a cake, and you express willingness to take any cake you can get. In the end, you may not be satisfied with the cake you get. The way to assure good cake is to (OMG!) pay for it.

“FREE!” in all it’s guises isn’t always the answer to everything, and I think that the Professor puts enough out there to make everyone take a step back and think for a moment.

Anonymous Coward says:

Re: Re:

You could read it that way…or you could read it as completely supportive of the Techdirt “line”.

It seems to me that the main message was: everyone recognizes that the world is changing…each side brings something to the table that might be useful in dealing with those changes so that culture continues.

Unless you’re new here (and it doesn’t sound like you are), I’m not sure how Boyle is saying anything different from the Techdirt norm. If anything he may be wagging his finger at some of the commenters on the blog who mock the clueless, but those blog commenters’ positions != Techdirt’s “line”.

Anonymous Coward says:

Re: Re: Re:

He doesn’t toe the line because he is as willing to look at things from the other side as he is from the company line side. There is a suggestion that both sides have positions that are not sustainable, that reality will probably fall in the middle.

Most of the pieces that Mike runs here are so blatantly sucking up to the techdirt line that I just think it is refreshing to see a point of view that includes multiple angles and acknowledges that all sides have something to put into the final result.

It’s also the first piece I have read here in a while that isn’t mocking or rude about change. No buggy whips, no dinosuars, and no hatred. That’s a big improvement, but I suspect it isn’t the type of attitude that riles up the faithful too much.

Jason Buberel (profile) says:

When the tragic commons is exhausted

This feels to me a bit like a tragedy of the commons situation: As long as reasonable quality investigative journalism is available for free, most people will avail themselves of that free resource. If that business model is in fact unsustainable, the providers of it will eventually fold. Over time, that unlimited free resource will become limited, thereby forcing the free-loaders to either:

1. Pay for the product they once obtained for free.
2. Find a new source that is still free
3. Go without the product

My feeling is that the market for investigative journalism needs another 3-5 years to reach a new level of homeostasis. In that time, we’ll see plenty of death and rebirth.

Clueless says:

And Now for Something Completely Different...

Is it a bad thing that when I read this article I heard it in my head narrated by John Cleese like some Monty Python sketch?

It’s a good read and has me thinking about the current situation of the AP and other news organizations but for some reason I keep waiting for a punchline to fall…

Ben says:

Post-Modern investigative Journalism

It would be interesting to see an online service that has a staff of journalists, it also has both a paying and non-paing reader base. The paying portion have the option of choosing what will be investigated, the more votes, the more likely it gets looked into. I would also have one to look into what the site wants to as well. The value comes then, not from the news itself, as ideas those are offered freely, but from the ability to suggest and direct what is reported tomorrow.

For instance, if a reader believes a particular business is participating in unethical practices, they could suggest that business be investigated. That idea then, will go on a list to be voted upon, if enough votes come in it gets looked into. Also a “Investigate-Now” option will be available, if you pay x amount of dollars, it gets to bypass the vote and get looked into now, but only y-percent of the journalists hired can be used for any one day in this manner, leaving the rest to be voted for.

This allows free readership profiting exclusively from advertising and lot of t-shirts. It also allows one to take part in the investigative journalism, voting on or buying a journalist for the day/week (perhaps different amounts depending on length of investigation) thus airing out areas “we the readers” see as a issue. Thirdly it provides the site itself to write for areas it sees as issues, preventing a rival organization from buying the vote, and too investigate 500000 votes coming from one IP address. One vote per account, or perhaps top three style voting.

We don’t need DRM news, we need the right to talk about what we read, especially with those who haven’t yet read it. With DRM, it will limit readership not increase it. With my proposed plan, although modifications may be needed, the reader will want to pay to help uncover areas of unethical activity important to themselves.

Hephaestus (profile) says:

Truth be told ....

This is going to be a free association rant …..

The thing I take from all of the plans of the … AP, RIAA, ASCAP, MPAA, etc. Is the fact that they are trying to dictate what they want of people and dont engage or ask what the people supporting them want.

Like …..

DRM, doomed to failure.

Stopping personal copyright infringement, not possible even if made illegal….. hmmm illegal … That is a frightening thought actually……

—you used a copy machine you are under arrest,
—you scanned that newspaper off to jail with you,
—you video taped that free concert in the park thats a hanging offense and we dont need due process!!

Music industry keeping the same level of profitability after using slowly escalating tactics.

—What do you mean you want me to pay for all my mp3’s again? My hard drive crashed!!!
—You want a dollar a song for Britney? Please I’ll just sign up again for that site that gives you 50 free songs.
—What do you mean I’ve been suspended from school for having mp3’s on my laptop?
—I paid for that music why did it all stop working?? Are you going to refund my money? I dont care that the TOS says you reserve the right to delete any digital file you provided for any reason, you should treat people with respect.
—What do you mean my ISP told you my friend e-mailed me an mp3 and you are charging me $80,000 USD for it?

Truth be told you have people running scared in most of the media industries we are already seeing abuses and they are only going to get worse, they old adage “Give them an inch” comes to mind …. I personally prefer the adage “Give them enogh rope” …. Big Ole GRIN

I have to send James Boyle my concept and ask him to give me an honest answer to my approach on new media distribution.

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