[ORGCon 2010] James Boyle: The Incredible Shrinking Public Domain

Intro: Good Afternoon, Org Con. I'd just like to very briefly introduce James Boyle

professor at Duke University, and the author of Public Domain and in many ways inspirational behind a lot

of what Org does. So welcome to you, James, and without further ado, I'll let him present.

James Boyle: Thank you. It's wonderful to be here. Org Con is an organization

that I am quite inspired by. I had wondered, as a Brit, where, in the space of civil society,

Britain was going to find a series of organizations that would deal with the issues

of the online world: issues of privacy, issues of free speech, issues of intellectual property.

And that would actually say: "Now these are serious and important issues,

and they are getting decided in little isolated silos,

silos called network design, or intellectual property,

silos called copyright law, silos called data base directives.

and that there was no organization, no single organization,

that said: "Now we are going to take all of those issues and bring them together

and actually be the voice of civil society, not just the voice

of a particular industry stakeholders, or of a particular legal organization,

but actually the voice of civil society.

So Org Con,in my view, is enormously valuable, and

I was incredibly honored to be invited here to give this talk.

I'm going to start with a quote from another Scot - I am a Scot - Lord Kames.

Kames, in a case in 1773, in the case called Hinton v. Donaldson,

It is a case about booksellers, and wheter or not there was a perpetual copyright

a perpetual commonlaw copyright. That issue got decided in England,

by the case of Donaldson v. Beckett, a rather famous case

but of course the Scots got there first, a year before,

with Hinton v. Donladson, and this is Lord Kaimes:

"I have no difficulty to maintain that a perpetual monopoly of books

would prove more destructive to learning and even to authors

than a second irruption of the Goths and Vandals."

(audience laughs)

Boyle: They did write better in those days.

More mike, OK. Absolutely. I will stand here like a jazz night club singer

and become throatier

(audience claps)

Boyle: So, Lord Kames's point was one that seemed obvious

to most of his brethren on the bench.

They believed, as good believers in the Scottish enlightenment,

that monopolies were bad, and that occasionally - very, very, very occasionally -

monopolies might be necessary and there would be a rigorous process of examiniation

of that monopoly, to make sure that it was necessary,

that it was not just the Crown handing over the monopoly of playing cards

or sweet dessert wine to its favorite customers,

that it was not just some industry incumbent saying

"But there would be no trade with India unless we get to own trade with India.

unless we get to own the trade with India, without owning the trade with India, why would one ever trade with India?"

There was a time where people believed thinking like that.

Someone had to own trade with India for there to be trade with India.

And then, a group of thinkers, including a bunch of Scots,

Adam Smith among them, said: "But actually, monopolies don't work very well,

and they have the tendency, as Macaulay said,

to make things scarce, to make them expensive and to make them bad.

That is the tendency of monopolies.

So what I want to talk about today is why we have forgotten Lord Kaimes' wisdom.

Why we have created our own irruption - he spelt it with an i and 2 r's -

our own irruption of Goths and Vandals. Why we have decided,

in fact, that we don't need Goths and Vandals to wreak havoc

on our own cultural heritage, because we can do it ourselves.

We don't need the Goths, we don't need the Vandals, we can write laws

that will wreak havoc on our culture.

So let me start with this paradox. The paradox is this:

if you consider us a single generation - I'm being a little presumptuous

in putting myself in a generation with everyone in this room, but let's go with me for a moment -

if you consider us a single generation, this generation has,

during its life time, witnessed the greatest expansion

of information dissemination and retrieval tools in the history of the species by far,

by orders of magnitude. It is now so commonplace to us

that we have access to enormous numbers of digital sources of information

that many of you aren't even looking at me, but you are focusing on the screen,

because clearly that will be much more important as a source of information

than what I was actually saying to you directly.

It is sort of like, check it out on twitter and it will be printed just in 140 characters.

I was on a podcast - a lovely gentleman in Australia -

he said I'd call it the right-click universe assumption, which is, he said,

when I'm walking around in the open air and I look at building,

I wonder when it was built, and I... where is the mouse?

and of course now, with your iPhone, there probably is a building recognition app

that can actually do this for you. And we take this for granted

that the knowledge will be there instantaneously.

What was that tune, what were those lyrics. What was the treaty of Westphalia again?

Whatever it is, we assume that the knowledge will simply be there

and that we'll get it; and that if we don't have it, that we'll put out some search

and that it'll eventually come back to us, and that in fact people will constantly be creating

information retrieval tools to mash up our geo-spatial data with crime statistics,

with places where people live, with degrees of creativity in different neighborhoods in London,

and presenting this to us, and all of this would just be there, and there free for the taking.

It's astounding and it's hard to believe - and for many of you in the audience,

the younger ones of you in the audience, it's impossible to believe -

that there was a time, about 18 years ago, when that was simply unimaginable,

when it just wasn't true.

That's one side of the paradox. The other side of the paradox is this:

absent conscious choice by a creator. None of you will legally share -

or be able to build upon - the cultural works created by your contemporaries

during your life time. None of you.

No one, sitting in this audience, will have free and legal access

to build upon, to republish, to version, to translate the work of any of your contemporaries:

any piece of music, any photograph, any piece of text, any movie,

unless they have gone out and specifically tried to give you that freedom,

unless they say, this is under a creative commons license, or

I'm putting this in the public domain. Amazingly, for the first time in human history,

you can look around this audience - actually, you all look like a bunch of communistic sharers to me

so this is probably a bad audience - but you could look around the audience and say:

"All of the works produced by my contemporaries, the default of the law,

the default setting of the lawyers, they are inaccessible to me.

Now, this was not true for prior generations.

Prior generations of novelists would look at the works produced by other novelists

and either see them having no copyright at all or that they would soon pass into the public domain.

Prior generations of composers either had no copyright on their compositions

or were confident either that the work would pass into the public domain

or that law would not intrude upon the practice of composition,

because it was assumed that there was an area within which law wouldn't go -

wholesale appropriation, perhaps not, but certainly quotation, reference, parody and so forth

This is a theme that my colleague Jennifer Jenkins is going to be discussing this afternoon,

when she talks about the comic book we are writing, the history of musical borrowing.

The title is "Theft! A history of music".

So there is this paradox that on the one hand, we have the greatest practical availability

of information and information retrieval resources,

and on the other hand, that the law has, in 2 distinct ways that I am going to lay out

made, as a legal matter, made our collective culture, and particularly

our collective culture from the 20th century, made that legally inaccessible to us.

On the one hand, massive practical availablity.

On the other hand, the default being more closed than at any time in human history.

And I do want you to focus on that.

OK. So let me start with the way in which we have closed off our cultural archives.

For many of you, this is old-hat, I apologize for bringing it up,

but perhaps some of you need a review.

So, for much of the history of copyright, copyright terms were short.

They lasted, let's say 14 years, maybe a renewal of another 14 years.

So again, if you were looking around the audience, you could think:

"OK, that person writes a novel, come 2024, that's going to be in the public domain,

that song is going to be in the public domain, that movie is going to be freely available.

In the US, as late as 1978 - this seems actually almost inexplicable nowadays -

but as late as 1978, the copyright term was 28 years, renewable for another 28,

at the option of the author or copyright holder.

85% of authors did not renew their copyright. What that meant was

that 85% of the stuff went into the public domain at the end of 28 years.

So, as of 1978, add 28 years, 2006, you could expect all of that stuff,

or at least 85% of the movies, of the books, of the photos, of the albums, of the songs,

to be coming into the public domain.

The people who were still successfully extracting money

from their compositions, or their books or their photos, to be sure,

would renew their copyright, but the rest did not, because most works

exhaust all of their commercial viabiitiy within 5 years of their creation.

28 years, in fact, in many cases, is probably way too long.

There have been studies on the optimal copyright term,

including some by some excellent scholars here, which show that the optimal copyright term

in terms of balancing the dead weight loss to society and the need to incentivize authors

is somewhere arount 12 to 14 years. It turns out we had it right

at the beginning of the copyright system.

That was 1978 in the US, but now of course copyright lasts for life + 70 years -

95 years in the case of a corporate work for hire.

What does that mean? Well, the first thing is that the works that you create

are not going into the public domain until 70 years after you die,

which, given the age of the people in this audience, is a very long time indeed.

And that might be bad enough, but unfortunately and brilliantly, what we did was

we retrospectively applied those copyright terms extensions

to the works that have already been created.

And we also did a couple of other things. We abolished formalities.

In the old day, you actually had to write a copyright © on it to get a copyright.

You actually may have had to renew your copyright after some period of time.

We decided that that was far too onerous and instead, that all of this work

should automatically be copyrighted as soon as it is fixed in material form

and should be copyrighted for the life of the author + 70 years.

And we applied those rules retrospectively.

So imagine the British Library, an institution I'm very fond of,

and imagine the British Library configured as a large British flan or meringue cake,

or perhaps fruit cake, given what I'm going to talk about.

A large, delicious confectionery. And if you look at that and you say, OK

let us take the works that are, say, more than 28 years old, just to use that particular term.

Of those works that are more than 28 years old, how many are commercially available?

So you've got lots of stuff in the British Library, you have movies, you have songs,

you have books, you have - right, how many? And you'll find - it depends on the art form -

that the answer is between 3, 4 or 5%, depending on the art form.

So this stuff is just not commercially available. You can't go out and buy it.

Now e-bay has made that slightly better off,

because it means the second-hand market is better, but even that -

no new copies available. So the work simply cannot be bought, but it's still under copyright.

Now, sitting in the library, you can go and check it out, but of course there's only one copy there.

And in many cases, it turns out that actually, you can't check it out

for example, in the cases of the films, and some cases the music,

they say, well, we can't screen this because it might still be under copyright.

And that might be bad enough, because we're locking this thing up,

puportedly in order to incentivize creation and distribution.

We applied it retrospectively to a bunch of dead authors.

So, for those of you not well-versed in microeconomics,

the odds of copyright terms extension incentivizing dead authors is relatively low.

(audience laughs)

We've done experiments on this, and there were some promising -

Madame Blavatsky had some promising kind of spirit-level medium

contacts, some claim that the Ouija board might have made something,

but actually, relatively little activity.

Presumably, therefore, we just need to give them more copyright,

on the theory that if they didn't produce whithin 50 years being dead,

if we just give them 70, that might be the necessary dose.

So, they aren't going to produce anymore, and their works aren't commercially available,

which is somewhat of a shame. But now the true tragedy:

the majority of our collective culture are orphan works.

Not little Dickensian waifs sent up chimneys, but rather works whose copyright holder

is either unfindable, or unidentifiable, or both. Now what that means

is that if you go to this library and you say: "OK, I love this book, it's fabulous,

I'd like to do a new edition for university students, I think that they can really learn from this.

And I'm happy to pay: I'll pay a licensing fee or whatever. Who do I contact?"

"Well, we don't know." "cause I will... OK. Well there must be some way, obviously.

I'm a good person, I want to pay the money. There must be some way for me to do this."

Well no, there isn't, actually, a way to do it, because copyright is a strict liability system,

which probably makes those of you with BDSM tendencies

get all kind of tingly, a strict liability not in the sense of a disciplinarian

with a birch rod, but rather in the sense that being a good person and trying really hard

to find the person is no excuse for copyright violation. You may not reprint that work,

you may not show that movie, you may not translate that poem or stage that play,

though you want desperately to go out there and pay, and though, in all likelihood,

the author, if he or she could be found, doesn't care a bit, or would be delighted

to have the work out there. Now, this is what librarians call 20th c. black hole.

The nature of black holes is, you may remember, that they are very dense and that they suck things in

and in the end, sucking in things including light, and that nothing escapes from them.

Copyright with the retrospective term extension [aside: I can see a couple of people going "Well, actually I ....

....which is one of the delights about speaking to a geek audience, I just love it - Copyright - You know who you are"]

Copyright sucks in our collective culture and some people do very well about this.

Gershwin's heirs are still reaping in royalties from "Rhapsody in Blue".

That's fabulous. But the vast majority of the works (2x) are not commercially available

and, in fact, no copyright holder can be found.

This is particularly true in the case of informal culture.

Think of all those home movies, a fascinating source of information for documentarians, eh?

But do you have a clearance? Who would possibly object to be showing this grainy home movie

of life in the segregated South? No one is going to care, you know,

but "Sorry, what do we get here, this is not pre-1923, the liability could be enormous,

we can't let you do it." What we've done - it's really quite striking - is cut off access

to our collective heritage in order not to benefit ourselves.

To be sure, the 4 or 5% of people whose works are still valuable after 28 years,

or the 1% of people whose works are still valuable after 56 years

or the vanishingly small slice of that cake I asked you to imagine the raisinous aroma

that drifts out if you talk about after 100 years, they indeed are benefitting.

But we lose everything else, even though it doesn't make any economic sense.

So, unfortunately there is already a Boyle's law by one of my ancestors, I gather:

it's a perfect academic law, it dealt with the fact that hot hair tends to expand -

(audience laughs)

But now, here's Boyle's way of analyzing a law. You can see how truly messed up

a regulatory system is, a system regulating a particular area,

by looking at it and saying: "Show me something which clearly screws us up,

which clearly imposes massive dead weight cost on society,

without imposing commensurate benefits, where we could clearly fix it

so that everyone would be better off, even the people who are currently benefitting from it,

and yet nothing gets done". Now, if nothing gets done, then you can tell that this is an impacted,

data-resistent, closed little world of regulation, because it would be so easy to do better.

So, I actually want to suggest quite seriously that Org Con run a competition.

The competition is for you to come up with a incredibly stupid, like room-temperature IQ -

talking centigrades here - room-temperature IQ theory for how we should reform copyright

which is just so stupid, so stupid it makes people's jaws drop.

(audience laughs, someone suggests ACTA (?))

Wait till we get to the end, it's even better. Not bad, though, I have to agree -

and keep it secret? No, no, that's not part of it - a jaw-droppingly silly reform plan.

But the reform plan has to be demonstrably far better than our current system,

even for the market incumbents. So let me just give you one example.

Supposing right now, we went out and said: "OK, let's identify all the people

whose work is still commercially valuable after, let's say, 56 years, right, whatever it is,"

and we'll say "OK, to all of you who were born on an even numbered year,

we will double the royalties you are currently getting,

and pay it all from the public fisc. And to all of you who were born on an odd numbered year,

we will triple your royalties and pay it all from the public fisc,

and everything else goes immediately into the public domain, all the other stuff.

So we get all of the rest of culture, right? Isn't that amazingly stupid?

But it's much better than our current system. You get the idea now?

(audience laughs and claps)

So I look forward to this. I really imagine some sort of fabulous Heath Robinson (? check)'s like

structure that this group could create that would show us just how bad copyright is.

What kinds of proposals are there? I'll just mention a few.

Orphan works legislation which would say, if a work is an orphan and you go through

a series of attempts to identify the author, then you should presumptively be OK,

you should get a kinf of safe harbor to use it, but then, if the author actually appears,

you have to take it down, something like that. These kinds of proposals have been put forward,

they've actually been introduced in numbers of parliaments,

there are very anaemic versions of them in a couple of countries. Canada, for example, has a version

which is better than nothing, but is still so limited as to be relatively useless.

But every attempt to do this ends up getting blocked, and as I said, gets blocked even though

it is not really helping even the market incumbents: it just basically makes them look bad

because in order to get their - keeping slices of the monopoly rent,

they have to put the rest of our collective culture off-limits.

So, I mean, this is a just a wonderful case to illustrate how messed up we are.

So this is one way in which we have made our collective culture legally unavailable to us

right at the moment when practically, we had this amazing tool for dissmination.

Just think for a moment about - remember my story about 1978 - imagine a world where

85% of everything produced 28 years or more before went immediately into the public domain,

where all of that stuff is in the public domain and all of it could be digitized,

where instead of the tiny little slice of the stuff that is commercially available from the British Library,

you instead can say, "Well, at least 85% of this stuff is free to use (?),

I'm just going to be able to click the link in the catalogue and view the book,

see the movie, get to translate something, etc. Imagine that world.

We could have had it, it wouldn't even have cost us anything,

because all we had to do was not to impose a stupid retrospective monopoly to get it.

And we gave it up without ever thinking about it. And that is actually quite sad.

Second way. These themes of the length of copyright and the granularity, both themes

that Jennifer Jenkins is going to be taking up, and how this has affected music specifically,

but I'm going to talk in more general terms.

The second one is the granularity of copyright, the level of cultural activity that it regulates,

like how atomic does it get? So this is a little harder to describe, because

you are describing not just law, that is to say the law in the books, the law in the cases,

the law in the statutes, but you are also talking about a set of business practices and assumptions.

We live now in a very weird world where on the one hand, people think that everything

ought to be freely available, that there should be no barriers to it, but everyone also assumes that

permission is always required. This is a weird sort of bipolarism in our attitudes towards permission.

How does this work? Well, what happens - Larry Lessig coined the term permissions culture for this -

is that there is an assumption that any piece of culture that might be copyrighted,

that we have to go out and ask for permission for it, no matter how small.

So in the comic book that we did on the effects of law on the documentary film industry,

we went out and found that documentarians were being told, often with no legal basis whatsoever,

that they had to do things like, for example, pay $10'000 to clear a cell phone

that rang in the back of a shot that was being taken on a documentary on ballroom dancing

because the cell phone played the theme tune for Rocky, which is still under copyright.

The documentarian actually wanted to keep it in, because it was an Italian-American family,

she thought it really kind of brought out an aspect of their relationships,

and she was told $10'000, and when she talked to us, she was delighted she had managed to negotiate it

down to $5'000. Now, for those of you who are wondering, there is no legal basis for this claim whatsoever,

if you said that you need to pay a licensing fee in order to do this, clearly a fair use under

American copyright law, you fail your copyright exam right then, don't even go into the exam room,

you know, you're done, goodbye. We probably shouldn't have admitted you to law school

in the first place. It is utterly ridiculous but it has become the norm in the industry,

because the insurance agencies who function as the gate-keepers for film distribution

have simply decided that everything must be cleared.

And luckily, there are some dozen people here who are trying to educate film makers

- that was our comic book - or to actually get them together and come up

with collective statements of what they think the law should be, how fair use should be applied.

There's great work done by American universities there.

But this is just an area where no one thinks that we get more or better documentary films,

more or better movies because, when a camera flashes across a tapestry or a painting

or a cell phone plays in the background, or God forbid, and this one is even stupider,

a person with a Nike swoosh hat (? check) walks across the scene

and they were told they had to pay for this - false - because it was copyrighted - false -

and in fact that every logo in all movies had to be earbrushed (? check) out, also ludicrous.

No one thinks this gives us more or better culture. And remember, copyright is actually - hard to believe

- supposed to fulfill a goal, which is to incentivize the production and dissemination of culture.

And this is something that's applying across lots of areas.

Again, a lot of this is just misinformation. It's worth going and sort of talking to people who teach

in your high schools, and find out what they think the law is. It's really fascinating.

It's sort of like, you know, what you were told about sex in the playground

when you were - OK, in my case, 10 in your case probably 4 -

(audience laughs)

Something to do with the belly buttons rubbing together makes the baby,

but if you jump up and down, not so much, except on a Thursday.

This is exactly the kind of stuff I was told. I went to a lovely, very earnest group of teachers

who were training North Carolina high school teachers on how to use technology

and were also thus the source of information about the law.

And one person in the group said "Well, we know that you are not allowed

to link to a website without permission, because that's the internet, which is in the law.

And we know that under fair use, you can quote a cell from an Excel spreadsheet, but my question is,

what if you're not using Excel?

(audience laughs)

I've been a teacher for a long time, but I didn't think that there would be question

that would stun me by being so thoroughly disconnected from reality

that I couldn't - it's like, I remember taking drugs that made the world seem this way,

but it's been a long time. (audience laughs and claps)

Richard Feynman had a great line in response to a physics paper, it's like:

"This paper is so stupid it isn't even wrong." (audience laughs)

OK. So my point is that in these 2 weird ways, right at the moment when we have this fabulous

technology of accessibility and dissemination, we have made our culture inaccessible,

inaccessible reaching back in time, unnecessarily locking up which is commercially unavailable,

and which in many cases has no author. Inaccessible latitudinally, across our culture,

because we are being asked for permission to quote tiny, tiny fragments: 3 notes sampled in a song,

for example. And for those of you who are interested, the book that Jim mentioned,

the Public Domain, which you can download for free, of course, has an analysis of how this played out

in Ray Charles's music for example. But I want to skip over that,

because I want to leave enough time for questions.

So, now the question is, what is to be done? What I am describing is, I think, something that

doesn't make sense, really, from anyone's point of view.

To be sure, the people whose copyright got extended and who are still making money from them

like their copyright terms extension. They think that their monopoly is not the second irruption

of the Goths and Vandals, but rather something that they deserve, because they,

or their heirs, more likely, or their corporate assigns (? check) even more likely,

actually created something of culture. And fair enough. But all the other stuff

that is commercially unavailable orphan works, it just makes no sense to lock it up

because you just can't come up with a reason, right?

And as for the claims of the granularity of culture, I mean, is there anyone who seriously says:

"No, with all these mazes of permissions fees and this fabulous full employment guarantee

for the people Boyle educates, to sit there painstakingly checking off every piece

of created culture and saying "Yeah, yeah, oh no, look look look, there's a picture in the background

that needs to be cleared or erased", which is often the case. A lot of the documentaries you see

are fantasies, because they accidentally included something that was copyrighted,

and so the film maker has to wash it out and replace it with something that never happened.

Kind of Brave New World, this, isn't it?

So what is to be done?

One possibility, suggested by the idea of the paradox I started out with is to say:

"To hell with it. The law is just stupid. Let's just ignore it. Let's just use technology to do

whatever we want with copyrighted culture.

We'll share the all the files we want to, and to hell with you.

We'll put all the books online, we'll make our movies, we'll take fragments of your stuff

if we want to and you can't stop us and it'll all be up on YouTube,

at least until the notice and take down request comes in."

And that's certainly a response that we see out there.

I am a stodgy sort in many ways, but in this way particularly, that I don't like ideas

for a continuation of our culture that depend entirely on a) lawlessness

and b) the continued viability of particular free technologies which are constantly changing,

constantly being reingeneered, and constantly being subject to ever greater regulation.

So to me, that seems like a thin reed to put our hopes in. And, as I said, I actually think

that the basic ideas of copyright are good ones. I think that the basic ideas,

not the absurdly long versions we have, not the absurdly granular versions we have,

actually I think that the basic idea is rather a sound one.

And to be honest, I think that the people who have given it its current hypertrophied form

have actually really harmed themselves in one distinct way, which is

they have turned an entire generation of people into those who are either guilty law-breakers

or joyful lawbreakers, but lawbreakers nevertheless.

And if you think that doesn't matter, consider the last time you saw someone

who desperately wanted to park not in a handicapped zone, when they would have double-parked in a heartbeat.

Because it's wrong. Right? And when you give up the idea that breaking the law is wrong,

which is, i think, what an entire generation has done, then you lose a very powerful battle.

And I actually think that was a mistake, an enormous mistake that the cultural industries,

in their pursuit of ever longer copyright terms and ever more rapacious demands for licensing fees,

have really shot themselves in the foot.

And I think it's people like me who are actually the defenders of copyright.

So digital lawlessness or technological workaround certainly is going to be part of our world,

but I don't think it's a way of solving this problem.

It particularly isn't a solution when what you need is collaboration from large and stodgy organizations

full of very well-meaning people who work according to rules,

like libraries, for example.

I love librarians, I really do love librarians, I went to a conference in Argentina where I said that

librarians were my heroes and that I regretted only that there were no place in popular culture

where they were celebrated as they deserved, that there was no iconic librarian that we could turn to.

I thought that this was dreadful, and I was upbraided seriously after the meeting

by a coterie of female librarians from Brazil and Argentina,

who said that the story of the repressed but sexy librarian in the porno movie

was one dear to their hearts. And how dare I disrespect it?

So I apologized for that omission.

So what else can we do?

Well, there's actually quite a lot that can be done with private axe (? check) and workarounds.

Creative Commons is such a workaround. Creative Commons tries to deal with

the no work, absent conscious choice by a creator, will be available to you to build upon,

to say: "OK, let's make the conscious choice part really easy, really, really easy.

And let's also make the legal accessibility of something, something that machines can figure out,

something that is searchable on Google.

That's a private workaround. The default of the law was: lock everything up,

so when we founded Creative Commons, we actually went to the copyright office and said:

"OK, we want a way for people to make their work free. What's your prefered method for creators

who choose to put their work in the Public Domain?" And they said: "We don't provide that service,

because we are about locking stuff up, not actually allowing authors to share their materials."

So that's the kind of workaround.

Google Books is a kind of workaround. For all of the criticisms made of it, this is an attempt to say:

"OK, let's see if we can actually make some of this material available online."

And the critics of Google Books - and there was very fierce criticism

particularly based on some of the potential monopolistic aspect - I think

miss 2 fundamental points. The 1st is that it's very hard for people to imagine

how dumb our system is, until they get to see what they have given up because of the choices we've made.

And if you can suddenly say: "You mean that I can search inside books? That's amazing!"

True story: one of my students was working on a research paper,

and he comes in with this research paper. It's quite good, but he has missed this enormous

chunk of material about which 3 very good monographs have been written.

And I say: "You need to go back and look at this, because..."

"Well, I didn't find that, it's in a book!" And it actually took a long time for me ...

what does he mean, it's in a book? And then I realized that to his generation,

a complete flip had occurred. Since Gutenberg, we have assumed that the book

was the realm of accessible culture, right? You wrote stuff down, so that it wouldn't vanish forever,

like the oral lore. And within the space of a generation,

the book had become the symbol of total inaccessibility.

"How do you expect me to find that? It was written down in a book!

I can't be expected to look inside a book!"

I mean, this is sort of as if I had asked him to go do research in medieval English, you know,

sort of like "I don't run that!"

So, workarounds. In a way, the NIH, the National Institutes of Health's, open access mandate

which requires that NIH-funded research be placed under Creative Commons licenses,

is such a workaround. Copyright locks stuff by default, the publishers want to lock,

particularly the commercial ones, the NIH founders, and this has been done in the EU also,

say "No: if we are actually going to fund the science, it ought to be publicly accessible,

not just to the Mark I Eyeball, but to the forces of digital mining,

that could actually allow us to aggregate and rework our science in new ways."

That's a private workaround, in this case, a state workaround. But it's an initiative by the state

to flip the default set either by industry practice or legal rule. And then, there is law reform, our final possibility.

And this is where institutions like Org Con come in. Now, you might say, after the experience of

the Digital Economy Bill, now Act: "I'm not so sure how this whole law reform thing

is going to play out." You might say: "I see enormous resistence to any kind of

sensible, balanced, civil liberties' respecting proposal, particularly in anthing that has

an intellectual property label attached to it."

And you would have reason for that skepticism.

I however have a - I hoarded some optimisim during the Dot Com boom, there was a lot going around,

(audience laughs)

Being a Scot, I thought: "I'll put it under the mattress!"

I will now bring it out. It's a little dusty.

The optimism is this: something amazing has happened in the past 10 years.

It won't seem amazing to any of you who haven't studied the way that intellectual property was (? check)

But for the first time, we have actually started looking at data in order to figure out

whether not the regulations are good or bad.

Now, lest you get wildly enthusiastic, let me quickly say, we don't then do anything about it.

So there are a couple of really interesting examples. The Gowers Review,

the Gowers Review in the UK really did a fabulous, serious, balanced job

of doing an economic analysis of retrospective copyright terms.

Their conclusion: "Retrospective copyright terms extensions are never justified."

Right? It was very easy, you know, a good academic paper lead up to it: easy conclusion.

The European Union looked at the effects of the Database Directive.

"We have a Database Directive in the EU - is it helping? No!

Is it raising costs to consumers? Yes! Is it generating more databases than in the US? No!

Is their industry going faster without a Database Directive than ours with it? Yes!

What shall we do?"

(audience laughs)

It's on the tip of my tongue. Oh, keep it, that's right, that's what we did.

They actually gave 3 options, the 1st was repeal it in a very useful way,

the 2nd was repeal it in a milder way

and the 3rst was keep it, and we kept it.

But the point is that this has actually begun. Data has begun to enter the debates.

And I'm a boring guy, I'm all about the data. If the data showed

that extending copyright term brought fabulous new influxes of culture,

I'd say "OK, great!" But the data doesn't show that, of course. It shows exactly the reverse.

And the 2nd thing is organizations like this. Because, again, for the first time,

intellectual property has become something that both affects people -

it used to be really hard for a human being to break a copyright law,

you know, you needed a printing press, right? Or a movie studio.

And now, you know, the instruments of your legal violations sit on everybody's lap -

like, you are copyright actors, copyright affects you, whether you like it or not.

But you also are copyright re-actors and copyright anti-actors, agitators.

You are people who actually engage in the public debate. To be sure, it's a beginning.

But the fact that both human beings and actual attention to evidence

have begun to enter the debate is something that my carefully ordered little piece of optimism

finds very cheering. Thank you very much.

(applause)

You are to kind. So, questions? Is there a microphone protocol? There is always a microphone protocol.

I've alway longed to get one of these like (rocket sound).

The gentleman all the way at the very back, sorry, it's always that chap. Meet her halfway.

Spirit of compromise is not dead.

Q: Hello, I loved your point about the fundamental shift that happens

when we start thinking that breaking the law is OK.

Clearly, there is some kind of pragmatic balance with the whole notion of civil disobedience and

the need to acknowledge that some laws need breaking as an act of conscience.

How do we go about kind of moderating and constructing a dialogue around that,

that doesn't turn us into kind of clumsy anarchists, but actually, we form an ideology

that enables us, and use it as a progressive process for changing the law?

Boyle: That's a great question. I think - the sad answer is that very, very, very little

of digital law-breaking is done in what I think of as the fundamental civil disobedience tradition,

the first part of which is - remember that you acknowledge that you are breaking the law,

you are completely open about it and you say: "I believe this law is unjust, and I invite the state

to inflict its violence or its imprisonment on my body, because I will testify by my actions

that this is wrong. This lounge car should not be segregated, so I'm going to sit down.

And I'm not sitting down saying, 'Hey, I hope they don't notice me.' right?

It's like, I'm not sitting down saying - I'm not lying down in front of the train

because I hope they won't notice as it goes along in India, right?

I'm actually saying: "No, I testify by my actions this is wrong."

Some actions are like that - I can think of some programers, for example,

who have done that very consciously, I think of librarians sort of making a very conscious stand,

but most, unfortunately, is much more like speeding and hoping you don't get caught.

And so I think, as a result, the sort of civil libertarian tradition isn't there

and my analysis of people is that they deem this as a law which they may think it has a moral basis

or not, they think that this moral basis is eroding.

But they do think it's a law and they don't think that they are in any way noble resisters.

They just think, I'm getting these songs for free.

And I don't think that action in itself builds a movement,

and I don't think it's particularly admirable either.

Over there? Thank you.

Question: Related to the last speaker, there is a precedent for laws being struck down

so (check) the cause, as they were criminalizing huge portions of the population.

And I believe the ID cards during World War II were finally struck down well after the war

permanently, because they were criminalizing a huge proportion of the population.

.... (check) then, don't you think?

Boyle: That's a very good point. I think the answer is that I see no likelihood that

that is going to happen here. I see, in fact, exactly the opposite. I think the Digital Economy Bill

is one move to the opposite, which is, since you are all lawbreakers, we're just going to have

to increase the level of control. So, it's completely a different response.

And the 2nd thing I think that makes it inapposite, sadly, in some cases,

although as I said, I actually support the copyright laws, is that the current system is one

where there obviously is going to be a level of leakiness in copyright enforcement.

There has always been a level of leakiness in copyright enforcement.

It used to be that we thought some of the leakiness was just OK, like we just didn't imagine

a copyright-regulated private behavior. L. Ray Patterson has a very good article on this.

It just neve occurred to anybody that copyright came into the private spnere.

And then there was another round way, we said "you know, this is probably technically illegal

but no one is going to fuss about it."

And what we've done instead was to move to an area where we say:

"OK, there is a percentage of copyright violation, let's say it's whatever percentage you want to say,

30%, 50%, 20% of the market. And my job, as an industry rep is basically

to get the state to drive that down to as close to zero as possible.

But acknowledging that it's never going to be zero, so asymptotically moving towards greater control.

For those 2 reasons, sadly, I think the kind of coming to our senses - another example is the blue laws

in the US, which criminalized sexual activities beyond the missionary position.

Still on the books in Massachussets as far as I know. And, so far as I can tell, not observed

by all of the population. (audience laughs)

Long before the Supreme Court struck laws like that down as an infringement of personal liberty,

the government had effectively started saying "this is ridiculous, we're not going to enforce it."

But that's not the way we're looking at our copyright laws.

Largely, I would say, one addition, because we lump in things, the ludicrous enforcement of copyright

against the thing that is commercially unavailable and you know, you can't find the owner,

with the copying of .... (check) album in its entirety, and we say those two things are the same

when I would actually want to make a distinction between them and say,

one there might be an argument for saying it's illegitimate, the other not.

Question: can I just ask, how many people in here would say they got into this

by illegal file sharing or free downloading, or something like that?

OK - that kind of somehow - what I was trying to say is that you kind of rubbished the whole sort of notion of a

massive disobedience, the whole sort of argument of getting something for free,

it's just about getting something for free, as opposed to being ideological

but surely you see that people have come to it in a way like through their activity,

like through the Pirate Bay, those activities have lead to people actually scrutinizing the laws

and looking at them deeper. Do you not think that that has a value, at least initially,

if that's ultimately not the final solution?

Boyle: That's a good corrective. Let me change what I said. I do think there are people

who get into this. One of the things that I'd like to ask people, is like,

how did you come to be convinced that this was bad enough that something should be done about it?

And for a lot of people it's, they're doing their job, and the law is getting in their way,

and they go: "This cannot be right, what, what, they're telling me about the law, it's just so stupid,

this can't be right." Programmers, by the way, for those of you in the audience, this is you.

I have had so many conversations with - "Well, that's just stupid!" "Right, yes, I understand"

"No, but it's stupid!" "I understand the meaning of the word 'stupid', and also the word 'this'

and I'm pretty clear on the whole conjugation of 'to be'. But nevertheless, it is the law."

"But it's just stupid!" And actually, it's a powerful disproof, I guess, of solipsism,

because if their disbelief could have caused the law to wink out of existence -

(audience laughs)

then it would have done, so massive was that disbelief.

(audience claps)

But yes, you're right. I do think that some people get into it in that way.

What I was saying was that I don't think that it's the case for the majority of people.

I think that for the majority of people, it's like, 'what file sharing system do you use?' you know,

'how do you get your stuff - isn't there something about turning off the uploads

and then they won't sue you', and that's the extent of the legal analysis.

But I take your point, that's not everyone. Good corrective.

The gentleman right behind, and then - I'll try to keep my answers shorter

Question: The last time I looked, the cases, the judgments on defenses

against infringement, whether that's satire or fair use, they were all over the place.

It's pretty unpredictable,, depending which court you're in, which jurisdiction you're in,

what the nature of the case is. Do you have any ideas about some, as it were, revised concept

which could actually bring some harmonious predictability to those differences?

Boyle: It's a great question. It requires a significant legal disclaimer,

which is, the nature of fair use or fair dealing varies subtantially by legal system -

a point you're making. So what I could say about fair use in the United States doesn't hold

for fair dealing in the UK, which is much more on a sort of list-like basis,

in the US, it's more a set of factors. People like me love those sets of factors

because they have been able to adapt to very new technologies: the courts did actually very well

in dealing with computer software. They made a series of decisions.

Copyright could have screwed up computer software totally,

they made a series of decisions, saying for example, decompilation for purposes of re-ingeneering

is fair use. Very, very good decisions, and that was those factors that let them do that.

The down side, though, is that you look at them and ask, what does this mean?

And that's why we did a comic book on fair use, so that people could - it's called "Bound by Law",

you can download it - so that people be able to understand it.

Is there a real alternative? Yes. There actually is, and we have a concrete example of it.

Believe it or not, it comes from ICANN, Internet Committee on Assigned Names and Numbers.

The domain registration grievance procedure, the procedure by which you say:

'You can't use this domain name, because you're saying you're Bruce Springsteen

and you're actually not, and then you go and deal with this in front of an arbitrator,

you don't need a lawyer. It's quite fast, it doesn't work perfectly, but it's very low-cost

and it's very quick, and most of the decisions have actually been pretty good.

Now one could imagine, perhaps in conjunction with something like the notice and take down provisions

of the Digital Millennium Copyright Act, or the equivalent procedings

in the European Copyright Directive, one could imagine a kind of adjunct, where you say,

if you're disputing, you say: "No, this isn't fair use", you get to go in front of an arbitrator,

make your case. Organizations like this, I'm sure, would provide fabulous guides for people.

I think it might be in the interest of the companies, in fact, to have a fairly, pretty good

working definition of what counts as fair uses or fair dealings or remixes of their songs or movies.

And it would be low-cost, and it would give definite answers,

and over time, develop a kind of common law. I think it's a really good idea and of course, that's one

for which there is absolutely no interest, as far as I can tell, in pursuing in any legislative body.

Sorry, the gentleman down here, and then that gentleman - I apologize.

Question: Thanks. I recently went to see Peter Jenner talk. He used to be the manager for

The Clash and Pink Floyd and all of that. And he said, if I can just quote from him:

"if we could get £1 /month from every person in this island for music it get,

it's very close to the current value of recorded music. We have to start thinking radically,

and we have to stop thinking about copyright law and how we can adjust it,

we have to think about how to rebuild copyright law in a digital realm where you can't stop copying,

get rid of exclusive rights and get into remuneration rights.

I do recognize that my attack on copyright is a brutal attack on property rights and on capitalism,

but the speed and the fundamental nature of the change is so great that it requires really radical,

really serious thinking." What's your view on that particular perspective?

Boyle: I think it's definitely something we should be pursuing.

Terry Fisher - William Fisher, Terry Fisher's friend, has a book called

"Promises to keep", which details systems exactly like this. Something based on levies,

maybe it would be on top of your broadband bill, maybe it would be based on number of downloads and so forth,

and basically, he says: "Let's get rid of this, let's just get rid of the copyright system,

let's just tackle on basically have an "all you can drink, all you can eat" procedure.

There's a lot of opposition to it, there are some real dangers.

One thing is, if you're trying to reward artists in proportion to downloads, then you have to know

who's downloading and how much. And if you don't want spoofing,

which of course you would get, then that gets you into quite intrusive monitoring

of what people are doing, ironically, to get away from the copyright system, you end up

doing some of the same things. So there are real dangers,

but I think it should definitely be on the table, and the fact it's not on the table is, I think,

very unfortunate. Sadly, the proposals that record companies like is:

"I like the bit about the revenue stream. I like that bit. That's a good bit. I didn't like the bit

about getting rid of the exclusive rights." So their prefered solution is

"Keep everything we'e got AND tack a new levy system on as well."

And that might be an unfortunate result of this procedure.

But I think it's worth pursuing.