Building a Digital Commons

May 20, 1999, Hauser Hall, Room 104 [ http://www.law.harvard.edu/About_HLS/Maps/hlsmap.html ]

Harvard Law School, Cambridge, MA

presented by the Berkman Center for Internet and Society

Introductory Discussion

9:15 -9:30 Welcome

9:30 - 10:00 Keynote Speaker: Professor Lawrence Lessig, Harvard Law School

10:00- 10:30 Discussion: Reactions to Professor Lessig's Remarks

• Hal Abelson: Perhaps large companies could open their patents to standards bodies.
• Scott (HP): There is no force balancing those in favor of extending IP protection. Perhaps also no one argues the other side of database protection legislation.
• Catherine Crouch: Some basic research ("a commons of information") should be done by universities, made available to the public. Reduces duplication of effort, but only makes sense within reason. If taken too far, reduces incentives to conduct research for later profit.
• Danny Weitzner: Society has some core values re openness. Open source community as Jefferson's yeoman farmer. Must not ignore the legal / public policy process.
• Randy Davis: Maybe IP rights not "too" expensive (about 10% of total costs?). The breaking of the technical protection mechanism has been made a crime. Hardware has become sufficiently cheap that a few hundred dollars of equipment can steal an incredible amount of IP.
• Terry Fisher:
  I. Strengthening of traditional IP mechanisms. Creation of new rights (for example "publicity rights"). Contracts & encryption (regulation through quasi-private mechanisms) - where the economic power is going.
  II.   Need to create incentives for placing material to the public domain.
• David Marglin: Not so worried about over-commercialization of IP in the long-term because that seems to be the historical trend: A new thing/idea/procedure starts out in commerce (privatized), then put in the public domain later on. But things move so much faster now that perhaps we need to consider how to put new ideas in the public domain even as the ideas are new.
• Jim Fishkin: Stopping interference may not be enough to make the Internet live up to its possibilities. Need institutions to facilitate participation.
• Nolan Bowie: Need to assure that information gets into the public domain in a reasonable time - not clear that current rules are in sync with modern rate of change of information. People need to participate in policy decisions re IP protection.
• Robert Thau: Depending on structure of industry, might need different amounts of legal protection to assure a reasonable return on investment. Biotech might needs lots of legal protection (high capital investment before receiving return), but not so for software (first-to-market advantage). So arguments for legal protections shouldn't be general (i.e. applicable to all industries), rather specific to particular markets.
• Tamar Frankel: Loss of some of commons as a result of technological change. Need to create a new institutional structure to restore the balance.

10:45 - 11:45 The Values, Challenges, and Effects of Building Open Platforms: A Case Study of Open Education and Discussion Tools (Panel Moderated by Jonathan Zittrain)

I. Hal Abelson

a. Universities have been the "hub" for the online commons. But maybe not for long. Universities see themselves as businesses, see distance learning as the future. Textbooks previously subsidized, but now material put on the Internet seems to universities like a potential cash cow. Change in policies re ownership of IP

1. Universities want to own the IP created under their auspices
2. Can't realistically change policies re textbook royalties because too entrenched, but (some) universities trying to take rights to textbook-like content in new media. One approach: Interactivity to belong to the university while static books (and static CD-ROMs) to be treated as texts. A groundless distinction?

b. Collaboration

1. (Some) universities worried of new relationships made possible by the Internet - collaboration between universities(potentially for commercial developments) now much easier.

c. Digital commons enhances value - learn from the free software movement

1. The business models for a product (software) need not be in the product (software) itself. Perhaps the content of a university is not the source of the university's actual value. Textbooks cost little (relative to total cost of education) but are so valuable. Perhaps "courseware" (software supporting university courses) more important.
2. Challenges in courseware
   Allowing others not just to add their own content but to integrate those additions with the main text.
   Do we need something like the GPL? (GPL - a model for distributing software - GNU Public License - all derivatives to stay in the public domain)
   Do we need a czar?
   Development platform?
   How to start? It's hard to scale from a small development initiative to something far larger.

II. Dick Nolan

a. Enabling infrastructure not yet in place.

b. HBS now has an intranet to relieve its structural impediments. Centralization of data storage improves efficiency.

c. Harvard University lacks the infrastructure to do the kind of sharing suggested.

d. Concerns

1. Opt-outs discouraged because opting out of the intranet would in effect mean opting out of HBS. Benefits of the intranet require full participation.
2. Existing IS staff may not be best-equipped for the challenge of implementing new technologies.
3. HBS system does not allow access by users outside the local Intranet. A policy decision (rather than technical)? Some distance learning initiatives being considered, with revenue-sharing.
4. What if a professor develops original content and then decides to leave HBS? Can he take (a copy of) the content with him? Maybe take a copy once EDS makes the platform available elsewhere, but definitely not remove content from HBS.

III. Terry Fisher

a. Reflections after teaching an online lecture and discussion series (http://eon.law.harvard.edu/property)

b. Premise: Content developed by a university for use on the Internet should be available for free. (Why? Because universities ought to be in the business of distributing information, not making money.) What arguments for charging?

1. Incentive systems within the university - may need to offer some money to content creators.
2. Just disseminating information isn't nearly as effective as providing information with teaching fellows (who facilitate discussion, give and evaluate assignments, etc.), and TFs have costs.
3. Cross-subsidies. Say, charging for content to support other socially-valuable enterprises.

c. Where to get money? Philanthropy, put perhaps not sufficient for large enterprises in the long term. General resources of university, but an up-hill fight.

d. Organization of the course to be self-funding

1. Public - free, funded by 2 & 3 below
2. Continuing legal education - pay money for access to TFs, b/c need credits
3. Groups from companies - for ongoing training of in-house staff, with confidential discussions within the firm.

e. When a site becomes sufficiently well-known as the premier provider of information on a subject, it gets the power to convince providers of information to give away their content. So, if many universities were each developing similar material, no single group would have sufficient power to get content placed in the public domain. That's a net loss in free content relative to what's available when a single university leads.

f. Relatively optimistic re development of a commons in universities.

IV. Questions re Open Content

a. Eric Eldred: Perhaps content providers could increase value of the course ("profit") by making it scarce. But isn't that contrary to the mission of universities (as articulated by Terry). A potential ethical problem since economic incentives contrary to mission.

b. Daniel Weitzner: Isn't teaching an important part of a university's mission? Abelson: Importance of setting up a community. Nolan: HBS doesn't underestimate the importance of having people together. Technology as a complement to community - lifetime learning.

c. Charles: The content of a course includes contributions from students.

d. Robert Thau: Giving away content and charging for those who "want" to pay is a model familiar to the open code community (a la Redhat). What would need to change to allow collaboration with other universities? Nolan: Part of the value of the platform comes from the fact that everyone uses it. Everyone wouldn't be using it at another university (or at another school within Harvard). Not so clear that the software would succeed in that situation.

e. Mary: Universities afraid for their survival. Worst vision: Each discipline "owned" by a single university. Worry that "non-top-tier" people would end up doing a university's online development. Abelson: It's true that many universities have big aspirations.

f. Jim Johnston: Let the market decide. If one university tries to charge too much, the market will force the price down. Nolan: Agree with letting the market decide. Have to pay content creators what the market says they're worth, so perhaps it won't be so easy (possible) to keep the cost of content all that far down.

g. Craig Davis: Need to reconcile the past with today's new metaphors. But perhaps metaphors no longer relevant.

h. Peter Kelman: Universities as a place to bring people together, subject to constraints of transportation. Now we have a new means of bringing people together, a new kind of transportation. Could take courses at various universities (no bus trip from Harvard down to MIT…). Zittrain: Perhaps some universities want to bundle their courses; would have to have appropriate IP arrangements with faculty to do so. Nolan: Lots of new possibilities, need to look closely at what's possible. Working Groups (after lunch - 2:15)

• Open Content - How to raise questions of open content throughout the university? (Hauser 101)
• Open Code - Should you own the code you run on? (this room)
• Patents - A threat to open code? (Hauser 105)

Working Group Reports

Open Law / Patent [ working group notes ]

a. Mix of lawyers and technical people

b. Public policy strategy

1. Let people know what the real issues are
2. A litigation strategy
3. Supporting funding the PTO to develop better prior art databases
   Perhaps a database specific to Internet technologies, but requires lots of administration
   Develop an community-based prior art database
4. Some concern re making changes too quickly

c. Perhaps a database of prior art specific to Internet technologies, but requires lots of administration.

d. Convene a broader (international) discussion - include leaders of Internet industry (see www.freepatents.org)

e. A bumper sticker?

Open Content

a. Action Plan: form a conservancy to preserve ideas on the Internet

b. Use tax dollars to fund the Commons, online.

c. Instead of taxing people, rely on the market to value the property.

1. Property owner could donate patented or copyrighted work to the nonprofit
2. Raise money from philanthropic institutions to buy patents/copyrights for the commons.

d. Using the property structures to undermine the private nature of property

Open Code

a. Questions: Why open code as opposed to closed? Why free code rather than proprietary/expensive?

1. Who is we? Divide between those who have the resources to produce free code and those who don't.
2. Why do we care? Get something that will work, or quasi-religious conviction to openness, law school (?) desire not to be hypocritical
3. Openness as means or goal?
4. What parts of openness are important?

Concluding Session: Building an Agenda, Larry Lessig

a. Scanning books for online display is "easy" - helping to make a "free and global public library"

b. Try to make documents helpful - proofread, provide discussion areas, etc.

c. Shut down site after copyright extension act

d. Worried that all Internet content will be controlled by a few powers. "Media giants want to turn the Internet into Pay TV."

e. Currently software source code need not be placed in Library of Congress in order to get copyright protection - unfortunate because, after copyright expires, still no access to source code.

II. Jamie Boyle, Yochai Benkler, Jim Fishkin, Danny Weitzner

a. Boyle:

1. Computers and the Net bring two sides of patent into collision. You can't patent algorithms, natural laws, but through the machine embodiment. Open code at the hinge.
2. Rhetoric. The public domain needs a public explanation. Look at the invention of "the environment." Create a concept that gives people a common interest.? The duck hunter and bird watcher both need the swampland preserved
   How do you make people see common interests?
   Connect it to public values, such as the schools
   Show the extreme examples to work back to the core
   IP externalities, like pollution
   Ecology: show the unexpected reciprocal effects
   It's not impossible to affect public policy.
3. We need a set of factoids, connecting these ideas to everyday life - the tip calculator patent. Stupid patents.
4. What can we do? ? Grease the wheels of private action.
   Prior art database, decentralized aggregate of knowledge
   Use open code in support of open values

b. Yochai Benkler

1. Open code as a rhetorical vehicle, symbolic of a larger point
2. Resistance to theory of the commons, public domain? Elite resistance: Need to work out the economics- inefficiencies of private ownership, Political theory
   Institutional. Congress, Judiciary - First Amendment
   Organizational. If universities think of themselves as businesses, they propertize information. They should instead act for the freeing of information.
   Cultural notion of "it's mine, I made it." Think about information in terms of relationships, not creation and ownership.

c. Jim Fishkin

1. Democracy. What type of conversation will fill the commons?? Pseudo democracy v. deliberative democracy
   Internet brings to life the SLOP (self-selected listener opinion poll) - purport to represent the public, but astroturf, not grassroots.
   Pseudo-democracy characterized by phantom opinions
   Public opinion, public spaces - both need a public.
2. Deliberative Poll
   Invite random sample of the public to come together for issue discussion, then ask for opinions.
   Thus far, face-to-face.
   Could we create real deliberation online?
   Deliberative Council for ICANN membership? Prototype, with international random sample
   Internet offers prospect for engaging the public more directly

d. Danny Weitzner

1. End the image of computer programmers/ hackers/coders as priesthood. Put issues in terms people can understand.
2. Code architecture is such a fundamental aspect of our lives that we cannot allow it to be controlled by patent.

Copyright 1999