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A ROUGH GUIDE TO REGULATING THE VILLAGE GREEN INNOVATION SOCIETY:

LEGISLATIVE INTERVENTIONS IN ONLINE CREATIVITY AND

SHARING OF KNOWLEDGE

Presentation at Tsinghua University School of Law

8 November 2009

A Conversation

Man has learnt much. Has named many heavenly beings

Since we have become a conversation

And can hear from each other.

- Friedrich Hölderlin

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A Concern

This country is planted thick with laws, from coast to coast...

And if you cut them down...

Do you really think you could stand upright in the winds that would blow then?

- St. Thomas More



An Observation



“At every stage of the development of mass literacy, it has seemed reasonable to doubt that anything productive could come out of widening the circle of participants.”

- Jamie Boyle

An Investigation



“Once after supper, Wittgenstein, my wife and I went for a walk on Midsummer Common. We talked about the movements of the solar system. It occurred to W that the three of us should represent the movements of the sun, earth, and moon, relative to one another. My wife was the sun and maintained a steady pace across the meadow; I was the earth and circled her at a trot. W took the most strenuous part of all, the moon, and ran around me while I circled my wife. W entered into this game with great enthusiasm and seriousness, shouting instructions at us as he ran. He became quite breathless and dizzy with exhaustion.”

The Problem(s)• How to promote “the progress of Science and Useful Arts”?

• How to regulate creativity while preserving the vibrant market and non-market arenas in which unregulated creativity currently flourishes?

• How to facilitate the knowledge-sharing that is necessary to the modern creation and distribution of creative content?

Typical Responses• Exclusive Rights

– Impose temporary legal restriction on the uses others can make of a work

• Cost: static inefficiency. Others less able to change, improve, or make better version of the work in question. Artificial restraint on mass distribution.

• Benefit: recoup costs incurred in production & distribution of the work. Ensure that those who create works are confident they will get reimbursed for the costs of the creative process, and for building out the creative infrastructure in which they and others will operate.

– Result, on balance, is dynamic efficiency. • More works created. More value disseminated. No problem with

free riders or tragedy of the commons.

Typical Responses• Functions of Strong Intellectual Property Rights:

– Stimulate invention & innovation– Deepen market

• Ensure clear market & distribution channels that don’t degrade the product.

– Maintain quality of works• Single entity provides semiotic & agricultural stewardship.

– Diffusion of knowledge • Clear ability to trade and license inventions.• Basis for incorporating knowledge into new downstream

products.

Typical Responses

• Creative Actors Treated as Rational Actors– Psychological assumptions:

• People act as rational, self-maximizing entities.• People have objectively satisfiable system-wide desires

and beliefs.

– Institutional assumptions:• Creator is often a single individual or centralized entity.• Different ways that people have of articulating their

creative goals are commensurable with one another and accessible through a common, universal incentive model.

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The Problem with Rational Incentive Models

• Many different modes of creativity.– Few of these modes are triggered by calculations

about the costs and benefits of a given action.• Many different motivations underlying creative

action.– Often, large group of dispersed actors, rather than just

one centralized entity. • Individual human choices may be about more

than maximizing objective function.– Subjective motivations and altruistic, group-oriented

action not captured by rational model.

The Problem with Rational Incentive Models

• “Most, probably, of our decisions to do something positive, the full consequences of which will be drawn out over many days to come, can only be taken as the result of animal spirits—a spontaneous urge to action rather than inaction, and not as the outcome of a weighted average of quantitative benefits multiplied by quantitative probabilities.”



How, then, to create laws and norms that regulate and

encourage this “spontaneous urge to action”?

How, also, to create laws that reflect the add-on nature of cumulative user-generated

knowledge?

A Different Solution

• (1) Focus our legislative attention on the conditions of creativity, rather than on the rational thought process that we might wish creative actors to undertake.


• (2) Set up a legal infrastructure that creates targeted zones of intentional under-enforcement of the laws regulating creative production, especially in highly transformative technology areas. – Goal is to ensure that laws that seek to regulate

incentives of creative actors do not get in the way of actual conditions of creative production.


• (3) Focus on knowledge-sharing, as opposed to knowledge exclusivity.

• Knowledge-sharing is premised on: – wide access to existing knowledge; – wide distribution of the capability to transform

existing knowledge into new materials;– free (or cheap) access to the tools and platforms

for creation and distribution of free expression.


• (4) Modular system design. – Not just one set of motivations/incentives regulating all parts

of a creative system.– Instead, promotion of small group settings in which

particularized routines and tacit knowledge can develop.– System of networked creativity depends upon different kinds

of knowledge generated in localized settings.• Goal is to allow creativity and productivity to adapt to the

unpredictable nature of the task at hand rather than be constrained in advance by certain system-wide rules.

– Cultivate a wide range of possible groupings of motivational profiles.


• Without (a) access and (b) transformative capability, knowledge remains static and insufficiently networked.– Downstream innovators must be able to adapt,

incorporate, aggregate, and transform existing creative works into new ideas and products.

– Groups must be able to work together without incurring large transaction costs each time some member wants to make a modification.


• However, knowledge-sharing cannot take place unless someone makes these tools of access and distribution available in the first place.

• And few if any intermediaries will risk making these necessary communication tools available if they incur liability for an individual’s infringing use of the tools.

Lessons Learned from Web 2.0

• Many risks of intermediary liability:– Copyright– Defamation– Obscenity

• “Inevitably, when millions of people are speaking, some of that speech will be objectionable”

• In these and many other areas, the intermediary, or the conduit of information, is seen as the least cost avoider.


• The solution to this problem, then, is to build in safe harbors from intermediary liability.– In the E.U., U.S., and elsewhere, various kinds of

network service providers have immunity from prosecution for the activities of subscribers to their networks.

– These safe harbors have created a foundation on which businesses and social environments alike have thrived in spite of the likely presence of illegal activity in such environments.


• In sum, companies like Google, Facebook, MySpace, Twitter, etc., have thrived due to a prevailing legal regime that has tolerated a certain degree of illegal activity on their networks.

• Fermentation: occurs when the line between the legal and the illegal has been blurred. Primary reason for the development of user-generated cultural communities on the Internet as we now know them.

Safe Harbors



Safe Harbors in U.S.• Communications Decency Act § 230(c) grants immunity to

online publishers of amateur online conversations.– “[n]o provider or user of an interactive computer service shall be

treated as the publisher or speaker of any information provided by another information content provider”

• Digital Millennium Copyright Act § 512(c) grants immunity to online service providers that facilitate the creation and distribution of user-generated content.

• General conditions that intermediaries must satisfy in order to gain protection from liability: – Intermediary must not be actively involved in creating the infringing

content.– Intermediary must take steps to delete infringing content once they

become aware of it.

Safe Harbors in E.U.

• The E.U. eCommerce Directive grants immunity from prosecution to service providers, on the condition that they are merely a conduit for content and not actively affiliated with the individual sending or receiving infringing content.

Safe Harbors“If we forced [a company] to try to find out which Web pages have problematic materials on them, there is no way it could return automated search results. Even if it employed an army of lawyers to scrutinize all of the content, it would still be in no position to tell which pages were infringing or defamatory. And even if it somehow figured out the answer for any given search result, it would have to determine the answer anew each time the search was run, because Web pages change frequently.”

-- Mark Lemley

Safe Harbors

• Towards a theory of safe harbors:– Creativity depends upon the ability to share

and modify knowledge without needing to secure, in advance, the permission of those who have rights in the knowledge.

– To promote this kind of creativity, important to preserve open & safe harbors of low-stakes, unregulated backwater.

Safe Harbors

• Creativity arises from conditions and contexts of abundance in which people can: – conversationally collaborate – share and refine their creative products with the

world at large.• Creativity arises from contexts where people

can have fun.• Prototype: the sandbox.

Safe Harbors• An analogy: economically significant spaces for

relatively consequence-free thinking and action often emerge from tenure-like job security protections.– federal civil service– federal judiciary – senior academia– senior partner ranks of some law firms

• Significant time and institutional space, even in terms of performance expectations, is carved out for play, writing, and seemingly directionless conversation.

Safe Harbors

• Fun = networked or conversational interplay: – Between two or more people– Between a person and a detailed imaginative

world– Between a person and an object (such as a book,

character, or computer game)– Between two objects with sufficient intelligence to

make things up as they go along

Safe Harbors

• Rather than following pre-existing agreements, contracts, or laws;

• Conversational interplay is about engaging in a “pickup game” that “proceeds without benefit of explicit agreements” and relies “on a presumptively shared sense of fun.”

• Takes place outside a well-regulated space where everything must be justified in advance.

Safe Harbors• Free & Open Source Software

– Observation: • good code results when developers have the ability to read,

write, edit, and share their code with one another• such sharing is hindered when coders make assertions of

exclusive rights in their creations– Conclusion:

• rough restrictions, derived by community consensus, under which participants in the community agreed:

– Negatively, to relinquish certain of their exclusive rights under copyright and patent law.

– Positively, to continue recreating and modifying and improving one another’s works, and contributing those improvements back into the communal pool.

Safe Harbors• Technology as a conversation.

– An experimental approach towards language, law, creativity, and the products of creativity leads, in the end, towards a “richer and more-useful communication system.

– “This natural collaboration is part of what makes human communication so robust to failure. . . . When we describe things, our descriptions grow incrementally and can specify as much detail as needed. Clarification becomes correspondingly cumulative and open-ended.”

Threats to Safe Harbors

• Requirement that intermediaries enact policies to “deter unauthorized storage and transmission of IP infringing content.” (E.C. Memo re ACTA)

Threats to Safe Harbors

• Does a deterrence mechanism necessarily threaten the well-being of the Internet?– Content management and filtering systems can

themselves contain sufficient leeway for users to engage in borderline-infringing or minimally transformative activities w/r/t existing works.

• (at least theoretically)– Currently, DMCA notice-and-takedown regime gives

reasonable flexibility to U.S. ISPs in determining whether infringing user should be terminated from future use of network.

– This flexibility is a good thing: it enables the kind of case-by-case decisions that fair use law requires.

Discussion• China’s resistance to safe harbors.• Safe harbors fall away as technology environment

“matures”?• Threat of perfect enforcement of anti-infringement

mechanisms.• Formalization of anti-infringement mechanisms in

international treaties.– Specific deterrence mechanisms described in the

(nascent) Anti-Counterfeiting Trade Agreement:• Graduated Response policy.• Three Strikes policy.

Thank You

Nicholas Bramble

[email protected]

Yale Law School / Kauffman Fellow in Law

Information Society Project

www.yaleisp.org

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