progress – Techdirt (original) (raw)

No, The Public Standing Up For An Open Internet Is Not A Criminal Google Conspiracy

from the the-public-is-not-google dept

Over the past decade, we’ve talked about music industry lawyer Chris Castle and his bizarre interpretation of reality a few times. He insists that anyone supporting the legal sharing of content via Creative Commons is “self-serving shilling for the self-absorbed on the short con,” which I’m sure must have sounded clever in his mind. A key target for Castle and his friends is that Google is the representation of all that is evil in the music industry. It’s a convenient foil. Castle and his friends see Google lurking behind anything that’s not like the old days, similar to the way that adults freaked out that pinball machines were destroying the minds of the youths in earlier generations.

Castle’s latest claim, however, is positively crazy. Not only is he upset about the EU Parliament has agreed to reopen Article 13 of the EU Copyright Directive for discussion, he’s decided that the only reason they did so must be due to a criminal conspiracy by Google, for which he is demanding an investigation.

… there have been incredible and probably illegal uses of the Internet to overwhelm elected officials with faux communications that reek of Google-style misinformation and central planning in the hive mind of the Googleplex.

We saw this again with the Article 13 vote in Europe last week with what clearly seems to be a Google-backed attack on the European Parliament for the purpose of policy intimidation. That?s right?an American-based multinational corporation is trying to intimidate the very same European government that is currently investigating them for anticompetitive behavior and is staring down a multi-billion dollar fine.

Vindictive much?

Apparently, the idea that the public might actually speak out when they realize that a terribly written proposal would lead to massive censorship of the internet is unfathomable to him.

And let’s be clear here. This entire claim doesn’t even pass the slightest laugh test. Google already complies with almost everything in Article 13. The whole point of Article 13 is to try to force nearly every site that hosts user content to install a ContendID like system. Google already has ContentID. Indeed, if anything, Article 13 would cement Google’s dominant position by making it nearly impossible for newer, more innovative startups to enter the space without spending the tens of millions of dollars Google spent on ContentID.

The idea that Google would lead some “fake” public protest against Article 13 is ludicrous. But, this Google Derangement Syndrome seems impossible for those in the RIAA set to get rid of. I’ve mentioned before that just weeks after a massive public protest of SOPA stopped that bill from becoming law, I ended up at a dinner with an RIAA board member, who simply refused to believe that the public even cared one bit about SOPA/PIPA and insisted that the only reason the bill failed was because Google stepped up (in reality, Google was much slower than a ton of internet startups to recognize the threat of SOPA).

Indeed, this same derangement could be found in the tweets of former RIAA top exec Neil Turkewitz, who hilariously responded to the impact of widespread public protests by insisting that it was obviously not the will of the people stating:

Does anyone think the people have spoken? I doubt it. Democracy, freedom of expression & common sense were upended by allowing a Pirate & a fantastically large company w/ something to gain to define the terms of our freedom. A freedom w/o justice. An infant?s version of freedom.

Got that? Democracy, freedom of expression and common sense were upended… by people speaking out about the massive problems with Article 13. This is especially hilarious coming from Turkewitz, who worked for three decades on policy issues for the RIAA, at a time when the RIAA did so much of its policy awfulness by hiding it away from the public, in particular by sneaking awful ideas into secretly negotiated trade agreements, and then turning around and demanding that democratically elected legislatures write laws to match what he helped the RIAA sneak into those agreements. Or how about the will of “the people” when Turkewitz’s RIAA colleague, just months before taking his job with the RIAA literally snuck four words overnight into a bill that would help the RIAA member labels take away rights from all of its artists. Was that “the will of the people”?

The recording industry spent decades actively subverting the will of the people at every turn. Even though the Constitutional mandate for copyright be that it promote the progress of science and learning by providing more material into the public domain, the RIAA spent decades — usually in secret — pushing and changing the law to turn it into a welfare system for record labels. For decades, “the public” wasn’t even aware of what was happening, in part because copyright directly touched their lives so little.

That changed with the advent of the internet, and the fact that copyright and the internet don’t work all that well together. Now, these changes that the RIAA used to push through in a smokey backroom is likely to impact the tools and services that billions of people use to communicate every day. And the consequences of those changes will have a huge impact on them. So no one should be surprised when the public speaks out about this. It’s not a criminal conspiracy by Google. It’s the public actually caring about what the internet looks like and whether or not they’ll be allowed to speak without first getting permission and a license.

Filed Under: article 13, chris castle, conspiracy, copyright, neil turkewitz, progress, public interest
Companies: google

from the you're-doing-it-wrong dept

We’ve repeated this over and over again, but the Constitutional rationale for copyright is “to promote the progress of science” (in case you’re wondering about the “useful arts” part that comes after it, that was for patents, as “useful arts” was a term that meant “inventions” at the time). “Science” in the language of the day was synonymous with “learning.” Indeed, the very first US copyright law, the Copyright Act of 1790 is literally subtitled “An Act for the Encouragement of Learning.” Now, it’s also true that the method provided by the Constitution for the promotion of this progress was a monopoly right — locking up the content for a limited time. But the intent and purpose was always to promote further learning. This is why, for years, we’ve questioned two things: First, if the monopoly rights granted by copyright are hindering the promotion of learning, should they still be Constitutional? Second, if the goal is the promotion of learning, shouldn’t we be exploring if there are better methods to do that, which don’t involve monopoly rights and limiting access. And this, of course, leaves aside all the big questions about how much copyright has changed in the past 227 years.

Still, I’m thinking about all of this again in response to a new report — first found on BoingBoing — noting that 65 out of the 100 most cited papers are behind a paywall. The report is interesting and depressing. It doesn’t just point out that these 65 papers are behind a paywall, but notes the price of the article, and what the effective total price to cite really is (which they list as “cost to buy individually”).

The web was built specifically to share research papers amongst scientists. Despite this being the first goal of the modern web, most research is still published behind a paywall. We have recently highlighted famous math papers that reside behind a paywall as well as ten papers that have achieved a near rockstar status in research and the public. Here we systematically look at the top one hundred cited papers of all time and find that 65%65%? of these papers are not open. Stated another way, the world?s most important research is inaccessible from the majority of the world.

In case you’re wondering, the average price to access each article is 32.33(andthemedianis32.33 (and the median is 32.33(andthemedianis32), with the range being 4to4 to 4to41. There aren’t too many down around the 4range,mindyou.It’sprettymuchanoutlier.Asyou’dsuspectfromtheaverage,mostarepricedinthe4 range, mind you. It’s pretty much an outlier. As you’d suspect from the average, most are priced in the 4range,mindyou.It’sprettymuchanoutlier.Asyou’dsuspectfromtheaverage,mostarepricedinthe25 to $40 range.

Of course, it’s worth thinking carefully about this — especially in an age where a useful service like Sci-Hub, which has created a library of academic research, open to all, is being attacked as an infringer, with all sorts of attempts to shut it down. Does this really make sense if the goal of copyright is to increase learning? (It’s a separate discussion altgoether whether the purpose of copyright was ever really to increase learning, or if that was just a fig leaf to cover over the idea that it was a monopoly right for publishers).

The people writing these academic papers are almost never incentivized by the copyright. Hell, in most cases, the journals they publish in require the copyright be turned over to the journal. The journal, which profits massively from all this free labor, seems to disproportionately benefit from this setup. It gets the copyright. It charges insane amounts — mainly to a captive audience of universities which feel required to pay extortionate rates — and everyone else gets left out (or has to resort to infringement). It’s difficult to see how anyone can justify this system in an intellectually honest manner.

The supporters of the system will fallback on a few points: they will claim that the journals provide peer review — leaving out that this is also done as volunteer (free) labor, and there’s no reason it need be done via a journal. On top of that, there’s the fact that the existing peer review system is a joke that doesn’t actually work. Some will argue that the journals provide a level of trust and credibility to papers — and that’s true, even if they still often publish bogus papers.

And, of course, all of this ignores the internet. The internet solves nearly every “problem” that journals claim they solve, and does it much better and more cost effectively. With the internet, peer review can be better and more efficient (and can let in many more perspectives.). On the internet, distribution can be much wider (which, on top of everything else, encourages greater peer review!).

And so we’re left in a position where the only “benefit” of copyright in academia is to prop up a journal system that is expensive and inefficient, and which is almost entirely obsolete in the age of the internet. That’s not to say there isn’t any role for journals — there clearly are, as we see from various open access journals that take a much more modern approach to these issues.

But, in looking all of this over, it seems like an unfortunate legacy of the copyright system that is props up the broken model of expensive, obsolete, inefficient and poorly vetted journals, while outlawing the efficient, cheap and useful model of an online library of knowledge like Sci-Hub.

If an alien were to come down to the planet today, and you had to justify why Sci-Hub is illegal and the journals are considered admired institutions of academia, I don’t think anyone could legitimately do so. And when that’s the situation, it seems like it’s time to fix the system that lead to such a completely broken result.

Filed Under: academic papers, copyright, innovation, knowledge, open access, paywalls, progress
Companies: sci-hub

New Year's Message: Keep Moving Forward

from the it-seems-like-a-struggle,-but-lots-to-be-happy-about dept

Since 2008, I’ve always concluded the year with a post in which I take a step back and reflect on (1) how I continue to remain optimistic despite lots of negative news (2) the overall forward progress of innovation, even while so many stories play up the negative and (3) the power to keep that forward progress moving. It started after I had a few people question how I remained so optimistic and happy, despite writing so many stories that seemed somewhat infuriating. But, as I noted at the time, the infuriating parts were mostly about attempts by people (often those in power) to hold back the pace of innovation. The forward progress of innovation marches on, however. And thus, we can and should be happy about that, even if we’re angry about the pace and the efforts to hinder that pace. It’s about understanding the difference between relative and absolute change. We should be happy with where things are headed, even if we’re upset about the pace at which things are moving.

If you’d like to see all of the historical New Year’s Message posts, they’re here:

Last year I started off by noting that I expected that message to be a bit of a downer, as it felt like things had been an even bigger struggle than in the past. But as I looked over the details, I realized it was the same story again. Yes, it was a struggle against forces that sought to stop progress, but the frustration was more about the pace, rather than the overall direction. And the same is true this year. At first I felt like perhaps things did move a little backwards this year, but upon reflection that’s not actually the case. Potentially it feels worse because of a few bits of bad news at the very end of the year, coloring the view over the entire year.

On the whole, however, there were lots of truly positive things this year. The FCC really did pass real net neutrality rules and has at least taken some steps towards enforcing them (and even just having those rules in place “magically” made the big broadband providers suddenly figure out how to stop Netflix from being throttled). Yes, there are challenges in place to those rules, including a legal challenge and attempts to route around the rules through data caps and zero rating, but overall the net neutrality fight was a huge win for the internet. At the beginning of the process, in 2014 it was “common knowledge” that there was no way the FCC would make use of its Title II powers to put in place real net neutrality rules — and yet, thanks to the internet speaking out, it did exactly that in 2015.

On the surveillance front, I know there’s lots of reasonable concern and criticism about it, but the USA FREEDOM Act really was the first significant surveillance reform package that restricted some surveillance activities in well over a decade. That’s a huge win. No, it didn’t go far enough. Yes, there are many other concerns about what USA FREEDOM does allow, as well as what other legal authorities allow, but the bill was still a step in the right direction. Yes, there are concerns about other efforts, like CISA (eventually passed in the Omnibus bill as the “Cybersecurity Act of 2015”), but getting at least some surveillance reform was a big deal. And, despite what some think, there are huge opportunities to push for even bigger wins in the future against mass surveillance. But this is going to require a really big fight, especially as countries like the UK take a massive step backwards on this issue.

Similarly, the fight over backdooring encryption is a key one that we’ve been focusing on, but so far it’s been a pretty big success. While tech companies used to basically ignore encryption entirely, Apple has been out front and center banging the drum on the importance of encryption. And, yes, the recent attacks in Paris and San Bernardino (despite a lack of encryption being key to either attack) have given the enemies of encryption a new foothold to argue their nonsense, but cooler heads in both Congress and the White House both seem to recognize that what’s being asked for is both magic pixie dust… and basically impossible.

In the meantime, though, stronger encryption and privacy is becoming much more standard. Apple has made encryption on phones a default and Google has been moving in that direction too. Consumer friendly apps like Signal are making communications encryption much more accessible. More and more websites are moving to HTTPS and DNSSEC. The forward progress of technology is making many of the political debates… obsolete.

On the copyright front, there were some huge victories, including a really great ruling on fair use in the Author’s Guild case against Google Books. It’s a ruling that will get cited time and time again in copyright/fair use cases. The 9th Circuit corrected its huge mistake from a year earlier in saying that an actress had a copyright interest in her performance in a movie. And it was made clear that Warner/Chappell no longer can shake down everyone for singing “Happy Birthday.” Yes, there were some bad rulings as well, including the ruling over Cox’s DMCA protections, but that’s just at the district court level, and we can hope that it will get fixed in later rounds.

More importantly, there are indications that many in Congress are finally realizing that copyright law does not work well with the internet today, and there appears to be some willingness to fix the problems of statutory damages and the use of the DMCA for outright censorship.

On patents, we still have not gotten the necessary patent reform out of Congress, but courts are still showing an increasing willingness to pushback on abuse, and hopefully that continues into the new year.

Yes, there’s still much to be done. We could use lots of legal reforms on issues: patent law, copyright law, the CFAA, ECPA and surveillance all still need fixing. But, again, there’s been forward progress on many of these items, and things that were considered off the table only a year ago are now entirely within the realm of possibility.

Meanwhile, innovation itself continues to move forward. I’ve talked about new consumer-friendly tools for privacy and encryption, and that is likely to increase over the next year. Similarly, we’re seeing new powerful innovations that I hope will address many of the other policy challenges that we’re facing. While politicians and legacy industries bemoan technology “outpacing” the law, I keep seeing examples of technology doing a much better job providing the public with what it needs, rather than policy makers trying to create laws to do the same.

On the Techdirt front, we had another fun year of discussions and conversations. Our biggest news was the launch of our think tank, The Copia Institute, which released some papers and held our first summit and some additional gatherings. Expect a lot more on that front in the coming year. We’re also working on some additional things for the Techdirt community itself, so stay tuned.

As always, I’d like to conclude with a giant thank you to everyone here who’s a part of the Techdirt community. As I’ve said in the past, you’re the ones who make all of this worthwhile, no matter how you engage. Whether you comment or lurk. Whether we’re something you share with all your friends, or are just a guilty pleasure you keep to yourself. Whether you submit stories or engage with us. We appreciate that you’re a part of this community, and that you’re passionate about all that we discuss.

We know that lots of websites are rejecting their own communities these days — turning off comments, putting up paywalls, and blocking people from reading if they have ad blockers on. We’ve gone in the other direction on all of these things and that’s because we don’t look upon each person as an opportunity to exploit, but rather a community member who we hope will participate in some way.

I’ve been doing this for 18 incredible years and I don’t intend to slow down any time soon. This remains the best job in the world — to write about and discuss these issues with all of you. Any time I get annoyed at what’s happening in the world, it’s the folks here who not only prop me up, but help me see through the clutter. I know that some of you are more optimistic than others, and some are more cynical. But overall, the depth and knowledge and passion of this community are what makes this all worthwhile.

Thank you again for being a part of all things Techdirt.

Filed Under: challenges, innovation, new year's message, optimism, progress, surveillance, techdirt

Neelie Kroes, the VP of the European Commission, recently gave a speech about rethinking copyright in Europe, which kicks off with a little joke about the ridiculousness of Happy Birthday still being covered by copyright:

Happy birthday to you all at the Institute for Information Law.

I would sing you “Happy Birthday”. But technically I think the song is still under copyright ? I don’t want to have to pay the royalty.

Of course, whether or not Happy Birthday is truly under copyright is at the heart of a big legal fight, with significant evidence suggesting that the song is clearly in the public domain.

However, Kroes is making a larger point about the way we view copyright today, and how that does not fit with how the world works. As such, she suggests rethinking how a copyright system should work:

I start from principles. What should a sound EU copyright system do?

First, it needs to promote creativity and innovation. To encourage and stimulate innovative new works, new opportunities, new channels, new models. To enable the research that leads to new discoveries.

This is a great start, and it highlights a key point of copyright law: it is supposed to encourage those kinds of things. The problem is that very little research has actually been done to determine if it actually does that. Instead, it’s often taken on the basis of faith that it must do that, without considering whether it really does, or if there are other limiting downsides to how it’s currently done. Some people claim that I am somehow “against” copyright. Nothing could be further from the truth. I am happy to support a copyright system that has been shown to actually promote creativity and innovation. I’ve just seen very little evidence to suggest our current system really does that.

Unfortunately, Kroes’ next point seems a bit off to me, though I understand why she’s making it:

Second, it must remunerate and reward creators. That’s not just about fairness. We expect creators to invest their time and talent. Of course reward, recognition, remuneration are essential: without them, the creative tap would fast stop flowing. I have always believed that.

But the current copyright system does not do it well. Not nearly well enough. Many creators scrimp by on a pittance, unable to find their full audience, unable to share or sell their works as widely or creatively as they want. Limitations and obstructions do nothing for creativity.

A few points on this. First, it seems to come from the incorrect assumption that copyright is a sort of “welfare” system for artists. That’s not its purpose, nor how it was designed. Copyright itself has never “remunerated or rewarded creators.” You can create all you want, and if no one likes it, all the copyrights in the world won’t get you paid. It’s the market that decides if you’ll be rewarded for your creativity, and sometimes the market is cruel. It’s possible that copyright can, in some cases, help create such a market, but to argue that copyright’s job, alone, is to help get artists paid is misleading, as it leaves out the basic fact that that’s never been the job of copyright. It may be an offshoot of the first point — creating the incentives for creativity and innovation — but to elevate the “help people get paid” point, dangerously positions copyright as more of a welfare system for artists, rather than as a tool for incentives in the market.

At the same time, the argument that “the creative tap would fast stop flowing” also does not seem supported by the data. At a time when artists keep complaining that it’s harder and harder to get paid, we’ve seen an astounding explosion in new content being created. Part of the issue is, in fact, that the money being spent today is spread much more widely — thus you have a lot of artists making that said “pittance,” but it does not appear to have resulted in any decrease in creativity.

That said, I’m all for figuring out more ways for there to be more creativity, and if we can figure out ways to get more artists paid, that’s a great idea. It’s why I’m excited about new innovative services that helps drive that process forward. Platforms like Kickstarter, Patreon, YouTube, Bandcamp and more have created entirely new ways for artists to make money from their artwork. But, there’s something important to note in all of that: almost none of those really are reliant on “copyright,” and pretty much all of them would function in nearly the identical fashion without copyright.

Again, this is not to say that copyright is not important. It’s to point out that it’s faulty and dangerous to assume that copyright alone is the tool by which to get artists paid. It leads to poor policy choices that often ignore more interesting (and potentially lucrative) methods being developed in the market.

Third ? it should enable a digital single market. Removing the barriers that get between artists and their audience, that prevent innovation, that shatter economies of scale. The EU’s leaders are signed up to a full, vibrant digital single market. So is President-designate Juncker. Now they need to act on their ambitions ? copyright is a major, essential part.

I’ll leave this aside for the moment because it’s a messy and complex issue in Europe that isn’t quite as simple as some would like it to be. I agree that taking down barriers would help, but there is a lot of nuance at play in this particular issue.

And last: perhaps most importantly, the legal framework needs to take account of the needs of society. Users’ interest and expectations matter alongside creators’ rights. Rules cannot be impractical, uncertain, or unreasonable for ordinary users.

Indeed, this is the most important, but I think it also goes hand in hand with the first item on the list. If you take into account the needs of society, and make sure that copyright really does focus on incentives for creativity and innovation, then everything else in the system works out nicely.

But still, Kroes is absolutely right to note that today’s copyright laws don’t function well under these current principles, and because of that copyright itself is at risk of becoming irrelevant:

Every day citizens here in the Netherlands and across the EU break the law just to do something commonplace. And who can blame them when those laws are so ill-adapted.

Every day, startups, small businesses, scientists abandon innovative ideas because the legal fees are too great.

Every day, people bypass the copyright system using alternatives like open source: something which can lead to huge creativity, innovation, and richness.

Copyright risks becoming an irrelevance.

And Kroes further points out how it’s not just that copyright is out of touch, but it may actively be harming the principles she states above:

The Internet gives enormous opportunities for artists and consumers. More direct access to a wider audience, and a wider range of content. New ways to share, spread, sell. New ways to reward and recognise. New ways for audiences to appreciate ? getting what they want, when they want it. A good copyright system would help us achieve that. Today’s does not.

Some examples.

When uncertainty prevents people remixing or creating their own content, how does that boost creativity?

When teachers are afraid to share teaching materials online, how does that help our society?

When a European Video-on-Demand provider tries to expand to new markets, but gives up because clearing copyright is so catastrophically cumbersome: how does that benefit our economy?

When consumers want to buy films or TV shows online but find they are geo-blocked: how does that benefit the fight against piracy? How does it benefit the artists whose works they could be watching?

When lovers of old films have to physically fly to a different country to see them, even if they’re no longer in commercial circulation, how does that support European culture?

When museums have to take out insurance specifically against the risk of copyright lawsuits, because it’s too complex and costly to figure out ? how does that help promote European heritage?

When you can’t sing happy birthday, or post a picture of the Atomium, how is that fair or reasonable, how is that something you can explain to ordinary citizens?

When European scientists have to abandon text or data mining because they can’t afford the legal fees ? how does that help innovation and scientific progress? And by the way that restriction is costing our economy tens of billions of euros.

I see no real winners in any of those cases. Creators lose out; innovators lose out; users lose out; our economy loses out. The system serves no-one. Solve those problems and I see only winners. We just have to jump over our own shadow.

As she then notes, it’s basically impossible to explain copyright to the average “man on the street.” Many now see copyright as “a tool for obstruction, limitation and control” rather than “openness, innovation and creativity.” The speech is well worth reading, and has some very good points. I just fear that the focus on that second point — of pretending that copyright is a tool for guaranteeing payments in a kind of welfare system, is part of what leads to the current problems of the system, and takes it away from those other key goals of benefiting the public. If the system is designed properly to benefit the public, it should automatically create incentives that help artists, whose work is in demand, get paid.

Filed Under: copyright, creativity, eu, europe, incentives, innovation, neelie kroes, progress, public

New Year's Message: Optimism On The Cusp Of Big Changes

from the make-it-so dept

While Techdirt started back in 1997 (yikes), since 2008 I’ve had an end of the year tradition in which I use the final post of the year to reflect a bit more generally on the topic of optimism. It kicked off after I received some comments from people questioning how I didn’t go crazy after writing about all of these negative things — and I noted that I’m actually quite optimistic and happy. The frustration comes from all of the efforts to hold back the pace of progress, but I’m quite excited about all the progress that is happening. In 2009, I focused more on the power of creativity and innovation, and followed that up in 2010 by noting that innovation can help turn pessimism to optimism. In 2011, I pointed out that we could then take that innovation and optimism and finally start to make a real difference, because the power was now in our hands. That turned out to be prescient, because 2012 was a year where we started to see real change, as people spoke up and actually made a huge difference around things like SOPA and ACTA.

For this year, that trend continues in a big way. The accomplishments of the past have only resulted in continued pressure to change things for the better in the future. The story of the year, without question, is the revelations about the surveillance state (thank you Ed Snowden), a story that is still just beginning, but has already had tremendous impact around the globe and will continue to drive efforts towards real, lasting and important changes. It’s interesting to see that the infrastructure that came together around SOPA starting in 2011 is continuing to operate today on issues related to privacy and surveillance. Yes, there’s a big fight ahead, and it may not go perfectly (nothing ever does), but to suggest that change is not coming is naive in the extreme.

This kind of change is not just possible, it’s becoming probable. In the past, it was nearly impossible for the public and a loose coalition of folks nowhere near the centers of power to effect change. But that’s been altered in a big, big way over the past few years, and it’s only going to continue. It’s easy to be cynical about all of this, but we’re already seeing the beginnings of change and it will continue so long as people continue to speak out, speak up and push for basic freedoms and rights.

And, of course, we’re seeing similar things happen beyond the issue of surveillance, in other areas that we normally talk about. After years of pushing copyright law to be ever expanded, Congress has now started a (long) process towards comprehensive copyright reform, in which it’s clear they’re paying attention to what the wider public thinks, rather than just focusing on what one legacy industry thinks. Again, this is the earliest stage of this process, but just the fact that Congress is open to comprehensive reform — something most thought to be impossible just a few months ago — is a sign of how far we’ve come.

Similarly, on the issue of patent reform, Congress is poised to pass significant legislation to try to limit patent trolling. The legislation doesn’t go nearly far enough, but a year ago it was laughable to think that Congress would even take up the issue, since it had passed (basically useless) patent reform in 2011 and pretended that it had solved all of the problems. The fact that Congress was willing to go back and revisit the issue so quickly — and this time to actually look at the problems — is a sign that when people really speak out about these problems, it is possible to create change. There’s still more to be done, but things are moving forward.

Yes, there’s much to be cynical about. And there is tremendous frustration in bad laws, bad rulings, clueless policy, dumb decisions and lawsuits. But if you go back just a few years and look at where we are today, you’re being willfully blind if you haven’t seen the somewhat astounding progress. Two years ago, you’d be laughed at if you said that at the close of 2013 we’d be talking about significant reforms to surveillance, copyright and patents. Yet we’re right on the cusp of all of those things.

That’s an amazing statement of the power to create change in important ways.

We can and should be frustrated that this change happens as slowly as it does, and at the efforts to dilute or limit the change. We should be furious at the steps backwards that inevitably happen in this process. But we should be energized by the power to create change that we’ve seen over the past few years, much of it driven by large groups of people gathering together and speaking out. The amazing ability of the internet to bring together and amplify those voices and to drive home the message that these changes aren’t just desired, but necessary, should not be discounted.

2014 is going to be quite an interesting year in so many ways, and each and every one of you should pat yourselves on the back for helping to get us this far… while gearing up to continue the fight.

Once again, I want to put forth a massive thank you to everyone who is a part of the Techdirt community — whether you comment, lurk, read, share, submit stories, discuss elsewhere, tell others about us or just drop in occasionally. We even appreciate those of you who feel it’s your job to disagree with nearly everything we write. For many years we’ve pointed out what an amazing community this is. It challenges me to think through a variety of issues each and every day in new and different ways.

We’re looking forward to 2014 and additional efforts we’re making to do even more for the community here.

I’ve been writing here for over 16 years and it remains an absolute joy and pleasure every day to share this space with all of you, to learn from you and to discuss and debate with you. You continue to inspire me, each and every day, to see what we can do not just to make this a better place for the community, but to look at ways that we might, in whatever little ways we can, make this a better world for everyone. Thank you again, for being a part of this effort.

Filed Under: change, copyright, new year's message, optimism, patents, progress, surveillance, thank you

Are The Old Enablers Becoming The New Gatekeepers?

from the watch-out dept

We’ve argued, for a long time, that just railing against “middlemen” misses the point. There are always middlemen. But not all middlemen are created equal. The distinction, that we’ve discussed multiple times, is the difference between enablers and gatekeepers. That is, historically, many middlemen came to power because they were gatekeepers. If you wanted to do something — be a musician, write a book, sell a new product — you effectively had to get “approval” and support from a gatekeeper who had access to those markets. Being a gatekeeper gave them enormous power, such that the gatekeepers often became central to the market, rather than the people/companies they were working with and it also allowed them to craft ridiculous deals that were incredibly favorable to themselves, at the expense of those they were working with. That, of course, is why there tends to be so much inherent antipathy towards traditional gatekeepers.

In contrast to that — and what we found most exciting about many of the new companies that had popped up over the last decade or two — was the rise of middlemen as “enablers.” These were situations where the middlemen weren’t gatekeepers, and weren’t “required” to do what you wanted to do. Instead, they were companies that helped give people/organizations a lift up on what they were trying to do, while keeping them and their work (rather than the middlemen) central to the market. So, when you see things like eBay or Etsy or Kickstarter, those are more enablers (and, yes, they do have some restrictions on use, but they’re more policy based, rather than “can you make us money”-based).

Of course, the truth is that there’s a spectrum along which these middlemen lie. It’s not two separate buckets, where “enablers” are here and “gatekeepers” are there. Rather, intermediary companies often fall somewhere along that spectrum. It seems somewhat clear that, for the most part, newer firms are becoming successful by being enablers, rather than gatekeepers. But… they don’t necessarily remain enablers their whole lives. One thing that is worth paying close attention to, is how companies shift over time, and when they start to shift from being enablers to being gatekeepers.

In fact, it seems like some of the big “clashes” we’ve been seeing in the tech/web world lately are along those lines. Lots of people have talked about Instagram and Twitter fighting with each other, which is just the latest in a series of “fights” among hot web companies blocking each other. Considering that many of these companies grew up on a web 2.0 ethos of openness and sharing — and we’re now watching them get more locked down, proprietary and limiting — it seems obvious that some of these companies are moving along the spectrum from enabler to gatekeeper.

Anil Dash recently wrote a great post in which he frets about the fact that we’re effectively losing key parts of the open web, which made the web great. You should read the whole post, as I couldn’t do it justice summarizing it here. Again, it seems like many of his points are really about some of the more successful “internet” companies moving along that spectrum more towards the gatekeeper side of things, and that clashing with the more open spirit that the enablers built their reputations on. Dash, rightly, points out that this is self-correcting over time. We shouldn’t necessarily fear the new gatekeepers, mainly because a gatekeeper business model, while lucrative in the short-term, is unsustainable in the long term. Companies, which move along that chain chasing the easy money, need to learn that they do so at their own peril. Becoming a gatekeeper merely opens up massive opportunity for a new enabler to disrupt you. That’s a lesson that too many companies learn way too late.

That said, Dash fears that because a new generation is growing up in a world with more closed systems, that we may lose some generational knowledge of what came before:

This isn’t some standard polemic about “those stupid walled-garden networks are bad!” I know that Facebook and Twitter and Pinterest and LinkedIn and the rest are great sites, and they give their users a lot of value. They’re amazing achievements, from a pure software perspective. But they’re based on a few assumptions that aren’t necessarily correct. The primary fallacy that underpins many of their mistakes is that user flexibility and control necessarily lead to a user experience complexity that hurts growth. And the second, more grave fallacy, is the thinking that exerting extreme control over users is the best way to maximize the profitability and sustainability of their networks.

The first step to disabusing them of this notion is for the people creating the next generation of social applications to learn a little bit of history, to know your shit, whether that’s about Twitter’s business model or Google’s social features or anything else. We have to know what’s been tried and failed, what good ideas were simply ahead of their time, and what opportunities have been lost in the current generation of dominant social networks.

I both agree and disagree. I’m among those who get a bit frustrated when I see new entrepreneurs trying something that was done before — and they seem to have no knowledge of it (ditto for reporters who cover the big “new thing” without mentioning that half a dozen companies did exactly the same thing a decade earlier). But, some of that, I’ll admit, may just be the onset of old fogeyism. Yes, there’s value in knowing the past, and learning from it, but there is also value in the naivete with which some new entrepreneurs jump into the pool — often not fully understanding the past. Will they repeat some of the mistakes? Sure. Absolutely. But not being burdened with the past can sometimes be a key ingredient in redoing something that failed in the past, and in somehow making that slight unexpected tweak that just makes it work.

So, I agree wholeheartedly that the “new gatekeepers” mean that we’ve lost some sense of what made the last generation of internet companies great. And I do hope that the next generation that comes along can similarly disrupt the last generation, often by being the enablers that break up their new gatekeeper role. And I think that companies who understand the history of how enablers disrupt gatekeepers should understand why progressing down that spectrum in search of short-term profits can lead to long-term pain. So I think it’s wise for those companies to learn from history. But I’m less worried about the new entrepreneurs jumping into the space. They’ll likely find their opportunities in being the new enablers, because that’s where the disruption occurs.

Watching the cycles of innovation can be a fascinating (and at times frustrating) past time. Companies make the same mistakes over and over again. The ones, which actually don’t fall for the usual traps, are few and far between. But, in the long run, the new startups tend to be pretty good at showing the old guard that they chose the wrong path.

Filed Under: enablers, gatekeepers, innovation, intermediaries, middlemen, progress

Disruptive Innovation: Bad For Some Old Businesses, Good For Everyone Else

from the also-known-as-'progress' dept

I recently joked that it felt like the main purpose of Kickstarter seemed to be to convince the world they wanted simplified wallets and fancy ink pens. If you don’t spend much time on Kickstarter, you may have missed that those two categories seem to account for a somewhat-larger-than-expected percentage of projects that people find interesting. The wallets, in particular, fascinate me, because there are an absolutely insane number of new wallet projects, with nearly every single one claiming to have reinvented wallets. I had no idea that the wallet market was open to such disruption.

Of course, it may be open to an entirely different form of disruption. As Nick Bilton at the NYTimes recently pointed out, as his smartphone has been able to do more and more, he’s beginning to think that wallets may be becoming entirely obsolete. There’s almost nothing he still needs to carry on his person since nearly everything that used to be in his wallet can now be taken care of via his smartphone:

Printed photos, which once came in “wallet size,” have been replaced by an endless roll of snapshots on my phone. Business cards, one of the more archaic forms of communication from the last few decades, now exist as digital rap sheets that can be shared with a click or a bump.

As for cash, I rarely touch the stuff anymore. Most of the time I pay for things — lunch, gas, clothes — with a single debit card. Increasingly, there are also opportunities to skip plastic cards. At Starbucks, I often pay with my smartphone using the official Starbucks app. Other cafes and small restaurants allow people to pay with Square. You simply say your name at a register and voilá, transaction complete.

But wait, what did I do with all of the other cardlike things, like my gym membership I.D., discount cards, insurance cards and coupons? I simply took digital pictures of them, which I keep in a photos folder on my smartphone that is easily accessible. Many stores have apps for their customer cards, and insurance companies have apps that substitute for paper identification.

It’s not entirely obsolete, but Nick makes a compelling case that it’s heading in that direction. To be fair, many of the new wallets seen on Kickstarter are, in effect, responses to this trend. The most popular styles appear to be “simplified” or “minimal” wallets that shrink down what you have to carry, so that you can just take the few essential cards with you. But, it’s possible that many people will be able to get by entirely without a wallet in the not-too-distant future.

This, in turn, reminded me of something else: about how disruption may destroy industries while making our own lives better in the process — but that simple economics tends to do a bad job recognizing that. I’ve talked about how traditional economic measures might measure the wrong thing. So, if we’re looking at wallets, for example, those in the wallet-making business might claim that this move towards the digitization/smartphonification of everything is “bad” for the “wallet industry.” That’s obviously silly, and most people aren’t too concerned about the wallet industry. But that ignores just how many industries are being totally upended by the smartphone. Think of all the things you don’t need any more due to the smartphone. A few months back, the Cato Institute put together a fun chart on “dematerialization” due to the smart phone, trying to make the argument that advances in technology, such as the smartphone, might also be good for the environment, since they lead to people needing a lot fewer physical devices, since they’re all packaged into that tiny device in your pocket:

Of course, what this also points out is the nature of disruption and innovation. Disruptive innovation, by its nature, destroys entire industries or segments of industries by making them obsolete. If you simply measure the economic impact on the fact that those industries are no longer present, or that those products are no longer being sold for hundreds of dollars, you could argue that there’s a negative impact on the economy. But, if you flip it around and look at (a) how much better our lives are, in that we have access to all that at the touch of our finger tips in a single smartphone, and (b) that as compared to buying all those other devices, individuals actually get to keep more money to themselves (though, not necessarily in their now obsolete wallets) to be spent in more productive ways, it seems like it’s actually a really good thing.

But this is something that we often struggle with from a policy standpoint. While no one claims to be missing “the fax” industry, lots of industries at risk of disruption will do all sorts of things to angle policy makers into blocking that disruption, by arguing about the economic impact of their own industries, and falsely implying that, if they’re disrupted away, all of that money somehow “disappears” from the economy. But the nature of innovation is that we make things obsolete by making other things better and more powerful and changing the way we do things. The end result is, generally speaking (and, yes, there are exceptions), better for everyone, enabling them to do more with less and do so more productively. Whether it’s a “wallet” or the entire list of things in the graphic above, progress has an amazing way of destroying old ways of doing business, and we shouldn’t fear or worry about that, we should celebrate it.

Filed Under: advancement, dematerialization, disruption, economics, innovation, progress, wallets

Don't Read Andrew Keen's Book – You'll Harm His Identity

from the or-'zuck-it-up'-if-you-prefer dept

To promote his new pop-Luddite book _Digital Vertigo_—named, I assume, for the slight feeling of dizziness that signals the onset of old age—Andrew Keen has written an opinion column for CNN about the disastrous consequences of social media for the human condition. Having spent a day to process his words, I’m left with one inescapable conclusion: Keen needs to take a broader view of history. I call this “inescapable” because it holds true whether or not you agree with him. If you reject his premise that them kids aint right, then you probably think he needs to look at all the many technological and societal revolutions throughout the millennia and the shortsighted people who have railed against them, only to be proven wrong. But what if you agree with that premise, and like Keen, you fear that Facebook will “Zuck up” the species, or at least take it sweetly in the hayloft then sell the videos to Zynga?

Then I think you would still have to conclude that he lacks perspective, because he simply doesn’t go far enough. His main concern, which he backs up with the quacking noises words of Techdirt’s good friend Sherry Turkle, is that social media is causing people to build their identities based on what people think of them rather than magically conjuring up an identity from within—and that this is a tragedy for humanity:

But this shift to a Facebook world of incessant “friending,” Professor Turkle correctly warns us, is a “seductive fantasy” which is weakening us both as individuals and as a society. The problem, she explains, is that a “capacity for solitude is what nurtures great relationships.” But in today’s always-on social media world, our solitude has been replaced by incessant online updates, which both weaken our sense of self and our ability to create genuine friendships.

…

What it means, of course, is that we are creating a world in which our sense of identity, of who we actually are, is defined by what others think of us. Social media’s ubiquity means that we are losing that most precious of human things — our sense of self . Our devices are always on; our “Timeline” (Facebook’s product which greedily attempts to capture our entire life narrative) is there for everyone to see; we are living in public on a radically transparent global network that, by 2020, will be fed by 50 billion intelligent devices carried by the majority of people on the planet.

This is disappointingly short-sighted. How could Keen reach this conclusion without noticing that the telephone also created more intercommunication and immediacy within communities, and thus should be rejected as well? Or that earlier still, international postage did us a great disservice by inundating our identities with annoying perspectives from around the world? If I am to follow someone backwards into this brave old world of isolation, I want a true leader who knows how to go big or go home (and “home” should be like, a cave, or something). In fact, I can’t think of a single instant in the history of human civilization where members of a community have not largely defined their identity and value based on the standards and demands of that community. I’m beginning to suspect that farming may be to blame—or maybe cave painting? Frankly I’m not sure why we spend so much time coming up with words to express our thoughts and get feedback from others, violating the sanctity of our identities by tempering them with a variety of viewpoints, when all we really need are hunting commands. So why isn’t Keen championing that cause?

Or maybe it’s not history Keen is lacking—maybe it’s philosophy. After all, there’s a simple solution to his problem: solipsism. Wasn’t it Descartes’ first principle that the self is the only thing one can be sure exists? And someone who hates progress so much should never need more than one principle. If we just accept that nobody else is real, then it won’t bother us when they tweet photos of their breakfast anymore. Ah, but I guess then we wouldn’t get the other benefits Keen mentions:

But remember, the less we publicly announce about ourselves, the more mysterious and thus the more interesting our private selves become.

Wait, now I’m confused. I thought the whole idea was to be less narcissistic, and not base our identities on the opinions of others. That sure sounds like a high-school-level attempt to cultivate a public identity to me, but since I’ve now decided that neither Keen nor anyone reading this actually exists, I’ll let it pass and focus on building my self-esteem by beating myself at Words With Friends, which is way more fun when you renounce your friends. Still, I expect more from figments of my imagination, and I hope Keen will realize that he’s only scratched the surface of the vile threat to our humanity that “community” represents.

Filed Under: andrew keen, digital vertigo, luddite, progress, sherry turkle, social media
Companies: facebook

Tell The USTR To Stop Being A Pawn Of Hollywood Lobbyists

from the time-to-wake-up dept

Every year, the USTR puts out its infamously laughable Special 301 report (as I’ve pointed out in the past, I’ve seen people in the ideologically-aligned US Copyright Office mock the Special 301 report openly — showing that even those who support it know that it’s ridiculous). The way it works is that the USTR asks for comments about what countries aren’t doing enough to protect US intellectual property abroad, and then puts out a “who’s been naughty” and “who’s been extra extra naughty” list to publicly shame countries. It’s been so ridiculous that Canada — whose copyright law is much stricter than the US in many ways — is frequently listed as naughty, and has officially stated that it does not consider the Special 301 process to be legitimate.

And that’s because it’s not legitimate. The way the process works is that the USTR takes the claims of various lobbyists and companies — does no additional objective analysis — and puts together its list. They do allow for open comments, and a couple years ago I submitted some comments about the mistakes in the USTR approach, and how it might be improved. Many others did similar things… and when the report came out, it was the same jumbled mess of industry talking points.

Either way, it’s that time of the year again, and Public Knowledge has put up a form to let people sign on to a simple letter asking the USTR to stop its “blind reliance on rights holder assertions” and to “put industry special interest claims under closer scrutiny.” If PK’s letter is not to your liking, you can submit your own reasoned comments (in 2000 characters or less — which seems pretty limiting).

For more background info, PK has a blog post explaining the Special 301 process and why you should speak up and tell the USTR to stop acting as government-certified shills for the legacy entertainment business.

Filed Under: copyright, foreign copyright, progress, special 301 report, ustr

Entitlement? Spoiled Brats? Or Just Progress?

from the you-cannot-deny-what-technology-allows dept

A few people have pointed to Charlie Brooker’s piece in which he suggests that people are so accustomed to “free” things online that they’ve become spoiled brats and feel “entitled” to things for free. This is hardly a new meme. We’ve been hearing it for over a decade in the debates over technology and how it disrupts business models by driving the price of things towards (or all the way to) free. But is it really entitlement? Or is it just a recognition of how progress works and the economics behind it?

I don’t think people are complaining because they feel entitled, so much as they recognize the power of technology to provide these sorts of things and recognize that what technology allows cannot and will not be undone. I don’t think that’s about being “spoiled.” I think it’s about recognizing progress. Is it “spoiled” to use a telephone or email to communicate? Is it “spoiled” to travel by a car or airplane? Or is it just the march of progress that enabled these things, and which people are quite happy about using because it makes their lives better?

If anything, it seems like the sense of “entitlement” and the feelings of being “spoiled” is coming from those who wish to hold back progress, and to keep things the way they were in the past, rather than embracing what the technology and progress have enabled.

Filed Under: entitlement, innovation, progress