Welcome back everybody We talked about how we are going to have to figure out, in this transition to the internet generation how do we make sure that the creativity continues and it creates a momentum around people being able to create content, and at the same time, allowing this digital media, digital entretainment, this digital world to continue to make sure that we have a robust discussion we have none other than From Duke's Law School, Professor James Boyle Jamie told me to make sure I cut the introduction down really short So he said, make sure you pull this book out and wave it to everybody everybody got this in your bags it is very rare you see someone who writes so seriously about copyrights and intelectual property to write a comic book the question is: is this protected? or we can just forward a copy of this and give it around? Jokes apart... He is a leader in this area, he has recently been made the chairman of Creative Commons In addition to that he has written a book, which you wrote about 12 years ago, right? If I get the title right, is: 'Shamans, Software and Spleens' which is about copyright and intelectual property, it's called 'the first social theory of the information age', by Harvard University Press So, with that introduction, I am going to have him come up here and introduce the panel, and tell us all about how we deal with this issue of copyright, or copyfight thank you very much Thank you, everyone My mother always told me, always make sure that you give them the lowest brow piece of content in the packets that they receive at the conference so you have in your packet, you have a Gilberto Gil CD, you have a Salman Rushdie novel, and a comic book by me I always dreamed that one day mybooks would stand next to Salman Rushdie's but this wasn't quite what I had in mind I am really delighted to be here, and to talk to you I've been asked to get the panel going, get the discussion going by summarizing in a little period of time what I've learned in the last 15 or 20 years about intelectual property online a theme that kept coming up in our sessions today and to talk to you a little a bit about some of the major trends that I see and then I am going to bring up a variety of extremely distinguished and fascinating speakers So, I have 2 themes I always like people who summarizes their talks at the beggining, so if I want to just check e-mail, and kind of zone out I kind of know what they've said So, my 2 themes are: First: We are extremely bad at understanding openness we were extremely bad at predicting how well open and distributed systems will do, particularly online we are extremely bad about understanding the virtues of distributed creativity creativity that involves a lot of people not working in traditional hierarchical organizations and we are conversely very good at looking at the dangers the real dangers that openness creates so I am going to claim that we have a bias about openness and I am going to say it has some implications not just for intelectual property policy, but for our business plans our methods of social organization, our culture and our politics And the second theme that I am going to bring out is that I am going to say that the last 20 years have seen something remarkable It has seen the fact that human beings, really for the first time have become the subjects of copyright law in a way that they never were before Human beings didn't use to be in the position of riskying sanctions by copyright law certainly companies did, pirates did but an average person interacting with content was not likely to commit any act that copyright law cared about read the book, fine, that doesn't involve copyright law provided that you purchased it. So those are the 2 themes, and I am goint to argue that if we take those 2 themes together that the combination of them has some pretty powerful implications for discussions and in particular, about how we think about the changes that the online world has brought and how it changes the world for the distribution, creation and incentivation of culture Ok, my first point Over the last 10 or 15 years behavioral economists figured out something that the non-economists among us knew long ago, which is: people aren't economic rational actors You might say, well, thanks, we knew that already but the behavioral economists didn't just say we were crazy What they've said is that there are patterns to the way that we think we are for example risk averse we are very worried about risks, and we don't take as much advantage of potential gains as you think a simple example: in this audience I bet there is a lot of people who bought warranties on their consumer appliances your tv, your computer, your washing machine, your fridge i am not saying.. you don't need to put your hand up to admit it but you probably sat there and said: 'I know the odds of this warranty actually being worth something to me are low I know in fact I am paying vastly too much for the warranty but I am going to buy it because if I don't the appliance will break to spite me' and you know you thought it, you don't need to confess it here behavioral economics teaches us about those kinds of patterns I am going to propose there is another pattern like that, another pattern of irrationality and it is our pattern of not understanding fully the virtues of openness I want to give you two thought experiments: So in each case, I have surgically removed from you your knowledge of the last 15 years for some of you this would be a plus... you would be quite happy about that but remember that is not just the Bush years, that goes back 7 years before the Bush years so it's 15 years ago, and two groups come to you and they say: 'listen, we have these two competing ideas about networks, and you'd have to pick which network to go with' so network #1 is a truly open network, it runs on open protocols the network doesn't care what kind of packets it carries anyone can conect to the network... i mean, ANYONE, even non-approved people can connect to the network they can innovate, they can put other stuff up, they can use it in any way they want, including in ways we haven't even thought of yet that is presentation #1 presentation #2 says: 'we have a nice controled network it will let you do a few things, the network will only pass certain kinds of content we will have a computer, we will call it a terminal that will let you do 4, maybe 5, maybe 6 things: print, view, scroll through... we will have a list of approved sites it will look like Minitel, or CompuServe, or Cfax' which do you pick? oh c'mon, it is obvious, you have to pick #2 #1 is crazy, I mean there would be porn... check there would be curiously articulate letters from the sons of nigerian oil ministers... check penis enhancement ads... check there would massive illicit copying... check, check, check... and check and so, really, anyone could put anything up anyone could say it, my neighbor could be talking about the Iraq war instead of the New York Times, we can't allow that kind of thing i mean, these people, some of them will be idiots... check they will say things that are wrong... check they will get in fights with each other... admit it, you would not pick network #1 it is scary, it is crazy, it would not work no one would build it if they could not control it we have to have network #2, we would reinvent Minitel we would reinvent CompuServe I think we might not reinvent the Net today, if we were offered the choice if you surgically removed the knowledge of the last 15 years from us because let's face it, it looks crazy second example: WikiPedia I say here we have two ways to make an Encyclopedia I want it to be the biggest encyclopedia in the world, I want it in lots of languages I want it updated in real time, I want it to cover as many things as possible Plan #1: We will have like a website, and people can put stuff up Plan #2 We will have a well capitalized, vertically hierarquically organized company We will have strong copyright, strong trademark protection The 'Encyclopedia Boyleania' will become the new authoritative voice better than the 'Encyclopedia Brittanica', the editors will pick the people who will write, will vet them, will edit them and we will control it rigourously, and monetize it. Which of these is a credible business plan to build an encyclopedia? I think you would agree that it is not plan #1 The point is: we sistematically favor closed proprietary systems over open decentralized systems not that open systems are always right open systems, for example, t-shirts and service lines we are not going to get a phase three drug trial. There are reasons we need control, privacy. There are times when only closed will work. That is not my point. It is not that open is always right It is that we skew towards the closed because our experience of property comes from things like the water sitting on that table... If I have it, you cannot. We intuitively don't understand the property that lives on networks Intelectual property, property that is non-rival Property that lots of people can have simultaneously So we have a bias in our thinking. My second point: People until, let's say, the 1970s or so, were not really the subjects of copyright law What do I mean by that? Of course there was copyright law and of course they were forbidden from violating it but let's say it's the year I was born, 1959, and I run, and I hand you a book and I say: 'Quick, violate copyright!" This is a thought experiment would only occur to a law professor, I admit, but What would you do? Are you going to read aloud for it? Are you going to a mimeograph machine and painstakingly attempt to do it? Copyright law was intra-industry regulation horizontal regulation It regulated the relationships between people who owned broadcast towers and printing presses, and film studios, highly capitalized production and distribution networks That's what copyright law was build to acomodate and to protect the authors and creators, whose works went on to those networks ok, now fast forward to today spend a day not making copies of things not distributing things not doing all the things that copyright law tells you are regulated. You couldn't. Life would be almost impossible for any of us involved in the digital environment The point is, that in the digital networked world We all constantly press copyright law's triggers Copyright law used to be like an anti-tank mine that could only be set off by a competitor with a printing press, or a movie studio and now, all of us, all the time, are potentially capable of violating it. Now, there is a reason for this, and it is a reason that is a very important one Lots of people are in fact violating intelectual property Lots of people have the power to make perfect copies, and they do. Some of them, many of them, are illicit. We focus on that very well We spend a lot of time in policy fora talking about it We changed our laws to deal with it We've introduced new legislation like the DMCA, and the European Copyright Directive to deal with it We have Digital Rights Management (DRM) to deal with it We have lots of ways to deal with this issue What we haven't focused on is the flip side of the same story, the happy side. Which is: we have effectively handed over to the number of connected people on the planet, 1.3 billion, we've handed over the tools of creation we have 1.3 billion potential authors, and photographers and film makers and those people are now subjects of copyright law they weren't intended to be the subject of the copyright law the law was not designed with their interests in mind those people don't necessarily have the same interests as our conventional content industries yet they too want to create, and they want to share. I am the chairman of the board of the Creative Commons Creative Commons was designed to deal with this situation. What is it? Many people who create copyrighted works, some of them work for profit, some of them non-profit, some of them universities, some of them individuals, wish to share those works, they wish to put them up online. So you come to my website, and you see that I have a calculus lesson, or I have a Bach sonata that I played on my violin, or I have a short story, or I have a comic, like the comic book that you have. What can you do with that? Well, presumably you can read it, since I put it online or listen to it. Can you copy it? Can you give it to a friend? Can you include it in your curriculum if you are in a K-12 school? Can you modify it? Can you change it? Are there some uses which are forbidden? You don't know. And you could try and write e-mails to everyone in the world to get permission, but that would be extremely inefficient. Creative Commons is a charity which offers to those people, those 1.3 billion potential creators, a set of simple tools, licenses that they can attach to their works saying: you can use this, so long as you give me attribution You can use this, but only for non-commercial use or you can use this, but I don't want you to change or to modify it with a few simple choices, you can mark your work and we did two things that nobody has done before first of all, we've made these licenses human-readable so that human beings, instead of lawyers, could understand them. This was quite an achievement, I have to tell you. The second thing we did is we made it machine-readable. So that means if you go to Google or Yahoo, and you click the intimidating 'advanced search' button, you will get content that I am free to use or share, and that will allow you to search for a physics text book, or a photograph of the 'Duke Chapel', or any of these things, whose creators have said: 'You have my permission, use it!' This is a creative commons. And it is a creative commons that has been created by individuals who actually wish to share and use. So those were my 2 themes. How do they come together? They come together because I believe that both in our business plans, and in our regulation, we are extremely good at figuring out the dangers of this new technology, and those are real dangers, let me be very clear I don't believe that every junior downloader is Che Guevara fighting for enlightenment I think it is somebody who just wants free music but... we run the real risk of missing the benefits and in our desire to make the online world safe for commerce we run the risk of undermining the things that brought us the Internet in the first place. By the introduction of ideas like Digital Rights Management (DRM), that you can't turn off in your computer, trusted computing, by systems which 'phone home' if you attempt to do something that the machine thinks is illicit and if you owns Windows Vista you know exactly what I am talking about. We may run the risk of going backwards because of our openness aversion, our cultural agorafobia, we may run the risk of going backwards to the world in which we only can do a certain number of limited things in which the computers have limited functions. When the VCR was introduced, Jack Valenti, of the Motion Pictures Association of America (MPAA) said: 'The videotape recorder is to the movie industry as the Boston strangler is to a woman alone' The VCR ended up providing, for some time, within 50% of the movie industry's revenues. Because this new technology demanded content, and the content was provided. We see the risks much better than the potential benefits. What I ask in our conversation to follow is, as we rightly seek to reward the creators, and content producers and distributers let's not also forget that we have democratized creativity to a universe, to an extent which would have been unthinkable years ago. Thank you very much.