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Monday, February 14, 2011

Groklaw - The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Friday, February 11 2011 @ 02:16 PM EST

The White House is asking us to give them ideas on what is blocking innovation in America. I thought I'd give them an honest answer. Here it is:
Current intellectual property laws are blocking innovation.
President Obama just set a goal of wireless access for everyone in the US, saying it will spark innovation. But that's only true if people are allowed to actually do innovative things once they are online.

You have to choose. You can prop up old business models with overbearing intellectual property laws that hit innovators on the head whenever they stick their heads up from the ground; OR you can have innovation. You can't have both. And right now, the balance is away from innovation.

Let's take some specific examples to show why that is so. When Napster first showed up, it was innovative. Heaven knows it changed the world. And instead of letting this creativity flourish, make money, and create jobs, the law was used to kill it. And kill it it did. The law is still trying to kill or at least marginalize peer-to-peer technology, and so it has never been used to the full.

To understand why that is a loss to innovation, you might want to watch this 2005 panel discussion on peer to peer software, "P2P: Pirates, Producers, & Purchasers: Toward a New Ecology of Music and Entertainment," one of the most depressing you can watch if you actually care about innovation. You can view it as a video here. It was at a conference on innovation and IP law that I attended that was sponsored by the University of North Carolina, and I'll never forget Gene Hoffman, who had been the CEO of eMusic, who talked about how innovation was being restricted and contained by the law and pointed out how much money could have been made with the new technology for enjoying music if fear had not blocked innovation. He and others on the panel also talk about some economic advantages of peer to peer and how it can reduce the costs of bandwidth in distribution, which is a real factor that could help independent startups.

Today, thanks to the heavy hand of the law, not much new was allowed to happen, and eMusic's customers are of an average age of 39, and of course it's young people who can make a music business hugely successful. Trying to figure out how to offer music legally and also in a way that will appeal to young people hasn't yet been completely solved, mainly because no one is trying to, and most all the innovation has been going into trying to block piracy instead of thinking about ways to appeal to customers, and it's holding innovation back. Peer to peer, as one panelist points out, makes it possible to offer esoteric music that is not otherwise made available for cost reasons. The panel convinced me that shortsightedness was a block against innovation, and it's even more depressing to view today than it was five years ago. When Grokster was decided in 2005, it really was a death knell for a certain kind of innovation in the music space.

That was a choice that America made. They could have changed the law, if they had had the foresight to realize this was a new way to make money from technology and for artists, but instead it chose to protect the old business model. So it used a legal hammer to force technological innovation to cease, go underground, or self-limit what it could otherwise do.

Now, you can make that choice. It's up to a society to decide such things, and it's not for me to tell anyone what to choose. Personally, I try to keep the law, no matter what I think of it, because that is what civil society means. But it was a cross-roads moment, and America didn't choose innovation. If you really want innovation, you have to let it breathe legally.

Lobbyists aren't in place for innovation, of course. If politicians listen only to RIAA lobbyists, you will never have any technology innovation, except perhaps in DRM, because lobbyists aren't about that at all. US CTO Aneesh Chopra acknowledged that tension in this CNET interview last September (at around 7:45). Innovation comes from some college kid in his dorm room. And he can't lobby. He doesn't even know he needs to, let alone how. So part of the answer, if you really want innovation, is not to follow the money. You have to be able to visualize it from the innovation, not just put it in your pocket.

Let's think about DRM in this context. That reminds me that you can watch a video of Cory Doctorow's talk on DRM at that same NC conference here. It's funny and true at the same time. And please read DRM and the Death of Culture by Simon Phipps, if you missed it earlier. He responded to a comment on DRM in the context of the discussions at the time about GPLv3, which was at the time being revised:

A comment writer (Christopher Baus) said of DRM:
I might be the only technologist on the other side of the DRM fence. To me it is like checking my lift ticket when I get on the ski lift. I might find that a bit annoying, but if ensures the resort can stay in business from collecting ticket money, then that is a net good thing for me. If the ski resort goes out of business I can't go skiing, and I would resent those who got on the lift w/out paying.
I think there are quite a few people around who have Christopher's view, which is unfortunately rather simplistic. DRM - the imposition of restrictions on usage of content by technical means - is far more than that. It's like checking the lift ticket, yes, but also the guy checks you are only wearing gear hired from the resort shop, skis with you down the slope and trips you if you try any manoeuvers that weren't taught to you by the resort ski instructor; then as you go down the slope he pushes you away from the moguls because those are a premium feature and finally you get to run the gauntlet of armed security guards at the bottom of the slope checking for people who haven't paid.
Seriously, will innovation flourish in an atmosphere like that? What is it teaching young people?

And do you remember when Adobe released a digital copy of Alice in Wonderland with a restriction that computers couldn't read it aloud? Alice in Wonderland. It's in the public domain, but they actually thought is was acceptable to restrict it that way. The law may let them, but how is that going to encourage innovation, a law that lets you do that to a public domain work? DRM also restricts access to knowledge, which ipso facto means it works against innovation, in the same sense that lack of access to the Internet does, as the President pointed out.

What about the DMCA?


Good Article... Very long, but very interesting info...


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