Stealing, remixing, and the Constitution

Photographer John Harrington has a post criticizing Lawrence Lessig’s approach to copyright and urging photographers not to give up their rights, no matter what Lessig and others might recommend. The post represents a dangerous approach to intellectual property firmly at odds with the Constitution.

The Law is only The Law until we change it

“Call me a killjoy,” writes Harrington, “but stealing music is stealing from artists. Period.” But why? Presumably because he believes the appropriation he’s describing is against the law. But why is it against the law? What is the purpose of copyright? I’m glad I asked…

To promote the Progress of Science and useful Arts

The Constitution states clearly what the purpose of copyright is, and it’s not to infinitely preserve the natural rights of artists. Its aim is to further progress. Which means we have to ask: is copyright achieving that aim? Are terms too long or too short, by that criteria? Lessig and others have argued persuasively that they are far, far too long. I’m open to debating that as an empirical matter, so long as we agree upon the basic purpose of the law.

Nothing is derivative of nothing

My fear is that Harrington would object to the very criteria by which the Constitution insists we judge copyright. My fear is that he would claim artists simply have certain natural rights to their work, and regardless of what the law says, stealing is stealing. I could go on for a while about why I find this misguided, but it’s hard to have a productive argument about a philosophical tenet. Here’s just one reason: despite what Cadillac would have you believe, nothing is derivative of nothing. Ideas, art, culture all build on what has come before. When thinking about intellectual property we often focus on output without considering input. (Put another way, everything is a remix, as the video below argues.)

Against artistic rent-seeking

Artists and content creators will always be tempted to favor strong intellectual property regimes. But self-interest is no basis for a moral theory (sorry Ayn). As Lessig has also argued, control over intellectual property has never been easier to exert. Technological limits to near-perfect control are evaporating. If content creators give in to temptation and insist on advocating for an intellectual property regime justified by a conception of natural rights – despite the Constitution’s clear position to the contrary – our culture will suffer. The line between stealing and remixing needs to be considered on the basis of maximizing progress, not just protecting property.

Paul Romer and The Great Stagnation

Today I downloaded Tyler Cowen’s new e-book The Great Stagnation for $4, along with Amazon’s Kindle app for Android. It’s got both the publishing and economics blogospheres all aflutter so I’m looking forward to the read. But what kind of blogger would I be if I didn’t comment first, read later?

Cowen had an op-ed a few weeks back in The New York Times that laid out his basic claim. Here’s one bit:

The numbers suggest that for almost 40 years, we’ve had near-universal dissemination of the major innovations stemming from the Industrial Revolution, many of which combined efficient machines with potent fossil fuels. Today, no huge improvement for the automobile or airplane is in sight, and the major struggle is to limit their pollution, not to vastly improve their capabilities.

Although America produces plenty of innovations, most are not geared toward significantly raising the average standard of living…

…Will the Internet usher in a new economic growth explosion? Quite possibly, but it hasn’t delivered very good macroeconomic performance over the last decade.

Cowen is brilliant, and I’m looking forward to the longer version of his argument, but I want to consider a more optimistic take on our economic moment by another brilliant economist, Paul Romer. What follows is from Romer, interviewed by libertarians Arnold Kling and Nick Schulz in their book From Poverty to Prosperity (which I can testify is valuable and interesting even to non-libertarians).


…this may be the most important question in human history: why have we had technological change and why has it been speeding up over time? …

…it may be inherent in the process of discovery that the more we learn the faster we can learn. It’s a notion that was captured by Newton when he said that he could see farther because he stood on the shoulders of giants. That was the first model that I tried for the speeding up phenomenon, that the more we learn the more we can learn…

…So it’s that kind of analysis, thinking of ideas as recipes – really, instructions for combining together small numbers of physical objects – that persuades, I think, anybody who works through the logic that the number of things we could have even tried up to this point in time is so small compared with the number of things that are possible, that we’re just extremely early in this discovery process. For as far as you want to project into the future of humans, we won’t run out of new things to discover. And as I conjectured in the beginning, it may even be that the more we learn about this process – the science of DNA, the science of materials, or our understanding of quantum mechanics – the more we learn about this stuff, the better we get at finding new, ever more valuable mixtures…

…The second-round answer, which I think may actually capture more of the truth, is that it may get easier to discover as you learn more things, or it may not, but what we’ve done is created better institutions over time so that we now exploit the opportunities much more effectively than we used to.

I believe Cowen wants to challenge this both on whether technological change has in fact been speeding up, and whether the technological changes we’ve seen recently are the same kind of economic game-changers we saw in the 20th century. I don’t know what role he would attribute to institutions. Which model is more accurate? I have no answer to that. But the Romer interview at least offers an alternative conceptual lens to Cowen’s. (You can read the full interview with Romer here.)

Cowen also argues that America has eaten up a lot of the “low-hanging fruit”, in education for instance, as described in the clip below:

It’s an interesting point. But once again for a more optimistic take I’ll point to Romer:

We’re going through this shift in the economy where the fraction of human effort that goes into actually physically rearranging things – bending metal, doing manufacturing, and so on – is going down over time and the fraction that’s going into discovering the right formula or recipe is going up over time. And that’s a really good thing, because all of the value really comes from finding the new recipes. If you picture the innovative activity of one hundred years ago and you think of it as U.S. Steel, most of the workers there were involved in literally bending or melting metal – doing the physical rearrangement – and a relatively small number of people were coming up with, say, better ways to extract iron from ore…

…So we’re going through this transformation where a larger and larger fraction of the labor force is engaged in problem-solving, sifting through possible ideas, and a relatively small fraction of people actually stamps out the pills or bends the metal.

(That bit combined with some other comments offers an interesting take on Julian Simon’s work, both approving and disapproving of his work on population and innovation.)

So in education the question may be whether we can innovate fast enough to outpace declining marginal student aptitude. Romer’s model suggests that as more minds spend time thinking about how we educate, rather than spending that time grading tests, passing out papers, etc., that innovation could speed up. Cowen’s suggests that each student we attempt to get through school is likely to be harder than the last. Will more minds working on better educational recipes mean better education, and therefore more minds devoted to finding other useful recipes? Or have we already eaten all the low-hanging fruit?

Perhaps I’ll have more to say after I finish Cowen’s book.

How I read

Last year The Atlantic Wire ran a terrific series in which it asked various thinkers and bloggers to write up a description of “What I Read.” From Clay Shirky to David Brooks, every response was interesting in its own way. Go read them all.

I’ve been meaning for a while to write my own answer, and my media diet has shifted a bit lately, so now is as good a time as any. You’ll notice I titled this post “How” rather than “What”. My aim is to focus more on the technologies and strategies than on the content (though there will be plenty of that baked in). That way, you can take any suggestions you like and plug in your own content based on your own interests.

So here’s how my information diet works…

NPR Hourly News Summary

As I leave my house on the way to work every morning I plug headphones into my Android phone and open up the (free) NPR app and click “Hourly News Summary”. This gives me a 5 minute rundown of all the biggest news items and corresponds absolutely perfectly with my walk to the subway (up here in Boston, we call it the T).

Morning Email Newsletters

I have about a 20-25 minute subway trip to work, and here’s why that’s tricky: I’m underground almost the whole way, without 3G. So I need ways to read that don’t require my mobile browser.

For that reason, I subscribe to a couple of daily newsletters. Normally, I HATE mixing my info diet with my inbox, but I make a couple of exceptions for the sake of my commute.

I start by reading Ezra Klein’s Wonkbook, a morning roundup of public policy-related news and analysis. I just added The Boston Globe’s top headlines email, since everyone I work with will have seen the Globe’s front page by the time I get to the office. I’m considering adding Politico’s Morning Energy to my inbox, since I work in clean energy; right now it’s in my RSS reader.

Once I get through the newsletters, I usually go to Everpaper on my phone. More on that later.


As soon as I get to work, I fire up both Twitter and Google Reader. For a lot of people, Twitter is their primary news source. I’m not there yet. I follow maybe 150 people through two different accounts, and have them broken into lists like “Friends”, “Professional Contacts”, and “Influencers.” I follow these lists with Tweetdeck.

I use Twitter to share lots of what I read, to comment on stories, and inevitably to find links. Who I follow on Twitter is biased towards who I actually interact and converse with, like David Roberts at Grist or Nick Jackson at The Atlantic Tech.

I also occasionally use Twitter to try out new bloggers or news sources, to see if I want to make them a staple of my reading. Which gets me to a major point: I try not to ever rely on Twitter for my reading. I’ll explain what I mean in the next section.

Google Reader

I’m a big RSS-addict and Google Reader is still far-and-away the backbone of my reading. But even I spend less time in it than I used to, due to Twitter. So while I don’t necessarily read every item in my Reader every day, I think of it as my backstop at this point. If I’m busy at work, I may miss most of what’s being shared on Twitter; my RSS reader is the place I go to catch up on whatever I may have missed.

At this point I’m picky about the feeds I subscribe to for that reason. My RSS Reader is my “bare minimum” reading, the stuff I’ll make sure to get to at least once a week, whether or not I have time to take in all the stuff that passes through my Twitter feed.

If you do care about the “What” in addition to the “How”, here are my feeds by topic area: General, Politics/Policy, Internet/Media/Tech, New York Times, Climate/Energy (that last one is way more than bare minimum since I rely on it for work) plus I subscribe to some Boston-specific news.


With no 3G on the subway, Instapaper is a lifesaver. (Actually, since I have an Android not an iPhone, I use Instapaper+Everpaper, which works well.) I come across a lot of articles throughout the day via Twitter, RSS or email that are too long to read on the spot, so I add them to Instapaper, using a plugin for my browser. Instapaper saves all the text from the article and then Everpaper downloads the articles directly to my phone. So on the way home from work, I usually dig into a magazine-length piece I found earlier in the week.


I’d be remiss if I declined to mention that I find a lot of great stuff via friends on email and Facebook. Though, truth be told, that’s secondary to my evolving diet of RSS and Twitter feeds. Also, I swear I do read books, although almost exclusively nonfiction. If I’m in a good book, I usually read that on my way home from work, instead of a magazine article on my phone.

How do you read?

I really do recommend reading The Atlantic Wire series. But I also recommend sharing your own methods. How do you manage your intake of information? I’m always adjusting my process (podcasts and email newsletters are both relatively new for me) and I’d love to hear how others read. Feel free to share tips in the comments, or if you write your own post, leave me a link to it. Or let me know on Twitter (@wfrick).

Paying ProPublica to read The New York Times

2011 is the year The New York Times will finally erect its much discussed paywall.  The Times will charge “less than $20 a month” for full access to its site; non-paying users will have access to an unspecified number of articles outside the paywall.ProPublica

As a heavy reader of the Times – exclusively online – I am not looking forward to this.  I don’t plan, as of now, to purchase an online subscription, for reasons I’ve laid out before:

1) As much as I like the Times, I don’t need it. And I’d rather be asked to support good journalism than forced to pay for it.

2) If I am going to pay money to support good journalism, I want to know that my money is going directly to that cause.

Which brings me to an idea:

The Times should offer free online subscriptions to anyone who donates a certain amount to ProPublica.

I’d get to keep reading the Times while directly supporting quality investigative journalism.  Not only is ProPublica exclusively focused on investigative journalism with “moral force”, it’s also a nonprofit so it fits well with my preference for charitable support over payment.

You might wonder why the Times would consider giving away subscriptions in exchange for donating to another organization.  It might seem odd, but I can think of a few reasons why they might consider it:

1) To retain power users they might otherwise lose with the paywall. I’m not going to pay for the Times, for reasons I’ve laid out.  Either they lose me as a heavy reader or they find some way to let me keep reading without paying them.  Of course, the Times could care less about me, but I’d hazard a guess that the kind of user who is firmly anti-paywall and pro-ProPublica tends to be more engaged and influential than the median user.  This demo isn’t very big, but I’d imagine it’s still valuable.  It’s full of web-savvy power users who consistently share content through their networks.  There is value in keeping these users, especially in light of (2).

2) It doesn’t cost the Times anything. Offering a few hundred free subscriptions costs the Times nothing, if you assume your target group wouldn’t purchase an online subscription anyway.  (I’m imagining that this isn’t marketed but just exists as a loophole for future-of-news geeks who otherwise wouldn’t pay.)

3) To curry favor with the anti-paywall crowd. Whether or not the Times cares much about the demographic I made up for (1) to describe people like me, they certainly care about their perception in the industry.  And with the paywall going up, they risk being dismissed by new media gurus who see their move as ill-advised or backward.  Why not demonstrate a commitment to experimenting with all sorts of new journalistic models?  Sure, we’re trying a paywall, they’d say, but we’re also supporting ProPublica’s experiment by helping them attract donations.

4) To help a partner. The Times has partnered with ProPublica on numerous stories; ProPublica and NYT Magazine even shared a Pulitzer Prize.  So the Times benefits, if indirectly, from increased revenue for ProPublica.

I’m imagining the donation mark for a Times subscription would be roughly in line with what the Times might charge for that subscription.  So perhaps the ballpark of $200/yr?

So there’s the idea.  What say you, New York Times?

The epistemology of Wikipedia

The Atlantic tech has a great feature for Wikipedia’s 10th anniversary, featuring thoughts from a number of excellent contributors, including Shirky, Benkler, Zuckerman, Rosen and more.  Check it out.

One point of interest for me was a contrast in epistemologies offered by novelist Jonathan Lethem and Clay Shirky.  Lethem:

Question: hadn’t we more or less come to understand that no piece of extended description of reality is free of agendas or ideologies? This lie, which any Encyclopedia implicitly tells, is cubed by the infinite regress of Wikepedia tinkering-unto-mediocrity. The generation of an infinite number of bogusly ‘objective’ sentences in an English of agonizing patchwork mediocrity is no cause for celebration

Now compare that to Shirky:

A common complaint about Wikipedia during its first decade is that it is “not authoritative,” as if authority was a thing which Encyclopedia Britannica had and Wikipedia doesn’t. This view, though, hides the awful truth — authority is a social characteristic, not a brute fact.

So far, that’s basically the same critique that Lethem offers.  But unlike Lethem, Shirky offers a pragmatic version of epistemology:

Authoritativeness adheres to persons or institutions who, we jointly agree, have enough of a process for getting things right that we trust them. This bit of epistemological appraisal seems awfully abstract, but it can show up in some pretty concrete cases.DARPA, the Pentagon’s famous R&D lab, launched something in late 2009 called “The Red Balloon Challenge.” They put up ten red weather balloons around the country, and  said to contestants “If you can tell us the latitude and longitude of these balloons, within a mile of their actual positions, we’ll give you $40,000.” However, because the Earth is curved, DARPA also had to explain the Haversine forumla, which converts latitude and longitude to distance.

Now, did DARPA want to write up a long, technical description of the Haversine formula?  No, they did not; they had better things to do. So they did what you or I would have done: They pointed to Wikipedia. DARPA, in essence, told contestants “If you want to compete for this $40,000, you should understand the this formula, and if you don’t, go look at this Wikipedia article.”

Shirky’s account strikes me as the kind of pragmatism advocated by Richard Rorty, of whom I’m a big fan.  What makes something true in a post-metaphysical world?  Well, how about whether or not it helps you track down the balloons and win $40K?  Hurray, pragmatism!

I recognize all of the above is less about Wikipedia and more about philosophy…so thanks for indulging me this post. But do go read The Atlantic’s package.  Particularly Benkler’s response.  I’ll leave you with this Benkler nugget:

That, to me, is the biggest gift Wikipedia has given us; a way of looking at the world around us and seeing the possibility of effective human cooperation, on really complex, large projects, without relying on either market or government processes.

Girl Talk vs. Angry Birds

Cognitive surplus is a term coined by Clay Shirky to describe the giant block of free time, once spent passively consuming one-way media or entertainment, that is starting to be used for more productive projects and collaborations.  (It’s also theGirl Talk name of Shirky’s most recent book.)  It’s a pretty simple idea, and Shirky describes it via example in an interview at Wired:

Shirky: We’re still in the very early days. So far, it’s largely young people who are exploring the alternatives, but already they are having a huge impact. We can do a back-of-the-envelope calculation, for example, using Wikipedia, to see how far we still have to go. All the articles, edits, and arguments about articles and edits represent around 100 million hours of human labor. That’s a lot of time. But remember: Americans watch about 200 billion hours of TV every year.

For more on the idea, watch Shirky’s TED talk here.  But will we realize the potential of Shirky’s vision?  Joshua Benton wrote a post a couple weeks back at Nieman Lab titled I have found the cognitive surplus, and it hates pigs.  If that doesn’t make any sense to you then you probably haven’t gotten sucked in by the latest time waster: the mobile game Angry Birds.  Says Benton:

1.2 billion hours a year spent playing Angry Birds. Or, if Shirky’s estimate is in the right ballpark, about one Wikipedia’s worth of time every month.

This post is a plea to embrace the cognitive surplus, to not get sucked in by Angry Birds.  So here’s someone who embraced the cognitive surplus, and put his free time to good use: Gregg Gillis, aka Girl Talk.  Go read this (2007) interview with Gillis, about the tension between his day job and his burgeoning music career:

Gillis: I have jumped on a plane to do Friday and Saturday shows almost every weekend for the past 4 months now. It’s a little difficult to never talk about this in the work environment and to completely ignore the fact that I’m signing autographs and playing sold out shows when I’m not in my cubicle.

Months later he quit his job to be Girl Talk full time.  So would you rather be Girl Talk or on get to the next level of Angry Birds?  It’s the start of the three day weekend.  Here’s to embracing your cognitive surplus.

Note: here’s a more recent article about Girl Talk, what he does, and how he performs

Update: If you think this comparison is unfair because when you’re playing Angry Birds on your phone on the bus, say, there’s not much else you could be doing, I have one app for you: Instapaper.

Age of the Winklevi

Vanity Fair published a piece this week on a lawsuit against the Huffington Post by two Democratic political consultants “for failing to acknowledge what they claim was their critical role in the creation of the Huffington Post”. Politico reported the story about two months ago under the headline “2 Dems claim Arianna Huffington stole website idea”.winklevoss

Wait, what?  What exactly was the “idea” for the Huffingon Post?

According to VF, “[plaintiffs] Daou and Boyce say that they were the ones who conceived of ‘a Democratic equivalent of the Drudge Report'”.  If that doesn’t exactly sound like an idea you can steal, that’s because it isn’t.

The actual charge, reports Politico, is “that Huffington and partner Ken Lerer designed the website from a plan [Daou and Boyce] had presented them, and in doing so, violated a handshake agreement to work together.”

This is a strange case, and commenters are already expressing skepticism about the strength of the plaintiffs’ claim, but I’ll defer to lawyers on whether or not any contract was breached.

What disturbs me most about this case is how it’s been presented.  The idea for a liberal Drudge just is not the kind of idea that is protected by our intellectual property regime, and for good reason.  Though the case actually seems to revolve around breach of contract, you wouldn’t necessarily gather as much from how it’s presented in the media.  The Politico headline, in particular, obscures the real issue.

Why does this matter?  My fear is that in the age of constant suits over intellectual property (music, film), and high profile suits that may seem to be about intellectual property (against Facebook or Huffington), we might forget that not every idea is protected by law, and that that is a good thing! Ideas that are protected by law are rightfully the exception, not the rule.

Lawrence Lessig explains how to think about this in The Future of Ideas.  I wish everyone who read the Vanity Fair piece would also read this:

This is a hard fact for lawyers to understand (protected as they are by exclusionary rules such as the bar exam), but most of production in our society occurs without any guarantee of government protection. Starbucks didn’t get a government monopoly before it risked a great deal of capital to open coffee shops around the world. All it was assured was that people would have to pay for the coffee they sold; the idea of a high-quality coffee shop was free for others to take. Similarly, chip fabricators around the world invest billions in chip production plants, with no assurance from the government that another competitor won’t open a competing plant right next door.

In each of these cases, and in the vast majority of cases in a free economy, one person’s great idea is open for others to take. Burger King and McDonald’s; Peet’s Coffee and Starbucks; Peapod and Webvan. No doubt the first movers would like it if others couldn’t use their idea or if others wouldn’t notice their idea until long after a market is set. But it is in the nature of the limits on patent rights, and in the nature of transparency in the market, that innovators in the ordinary market can’t keep their good ideas to themselves.

Some protection for ideas, and a bit more for expression, is provided by the legal system. But this protection is incomplete or leaky. Perfect control is never its character.

Innovators nonetheless innovate. And they innovate because the return to them from deploying their new idea is high, even if others get the benefit of the new idea as well. Innovators don’t simply sit on their hands until a guaranteed return is offered; real capitalists invest and innovate with the understanding that competitors will be free to take their ideas and use them against the innovators.

Thus, rather than puzzling about why anyone would code for free systems, we might as well puzzle about why anyone would innovate without a government-granted monopoly to protect them. Indeed, history will teach that, at an earlier time, this was very much the view. Mercantilists believed that exclusive rights were needed before any investment made sense; the English monarchy at an earlier time protected many ordinary investments through a state-backed monopoly.

Free markets, however, function on a very different basis. We don’t grant every merchant a guaranteed market; we don’t reward every new marketing plan with a twenty-year monopoly; we don’t grant exclusive rights to each new way of doing business. In all these cases, because the market produces enough incentive on its own, the fact that others can free-ride doesn’t kill innovation. (The Future of Ideas, pgs 70-71)

Subtle discrimination

My recent post on net neutrality unpacked a hypothetical offered by Reason magazine.  I laid out several reasons I thought their reasoning was flawed, and I want to briefly add another.  First, here’s the hypothetical:

If AT&T DSL blocked your access to Google because they wanted you to use Yahoo, what would you do? Probably cancel your plan and go to a provider that gives you easy access to your favorite sites.

When it comes to ISP’s discriminating between services or content, blocking sites is a blunt instrument (and one the FCC has now disallowed.)

Much trickier is discriminating via speed of service.  In the context of the hypothetical that means AT&T agreeing to make Yahoo arrive faster than Google or vice versa.

Even if you think blocked sites are enough to make users change ISPs, you might reasonably conclude they’re less likely to do so over this more subtle kind of discrimination.  Especially if they don’t even know if it’s going on.

Of course, the FCC is now requiring ISPs to “disclose what steps they take to manage their networks”.  Does Reason at least think that’s a good thing?  Or do they think consumers will sleuth out this kind of discrimination on their own and switch to neutral ISPs?