John Palfrey

For me, a long-awaited session.  What do the participants think are the Pressing Issues in internet law?

* Peer production: does it really matter to those of us who aren’t
interested in developing Apache?  Charlie Nesson pushes back to
Yochai Benkler: what is this freedom that you think we want, and what do you
think that we want to do with it?  Why do we care?  When we
want something else, this is the way to get it?  Charlie wants to
know what the “it” is.  Yochai says it’s blogging, it’s being more
engaged with the world around us in creative rather than passive ways,
it’s having more platforms to do other things we want to do — like
earning money.

* We can test propositions over and over again.  Scientists should
love it.  We can change the world through experiments.  We will fix things like no longer boiling trees to make paper.

* Jay McCarthy: people are already doing the things that Yochai says we will want to do, like blogging and making movies.

* Charlie really wants to know: To what new creative endeavors will
this new mode of production be applied?  Larry says it’s work as
play, or play as work (someone says it’s Ender’s Game).  Just experiment.  You might learn, and learn to be able to do, new and incredible things.

* Yochai: most of the great peer production examples are hybrids, not pure plays (Wikipedia is probably the closest thing to the pure play).

* Dave Winer: You panel
guys should move off the stand.  Practice what you preach. Make it
an un-conference.  Let’s do peer production.  [A "hum" from
the audience reveals no consensus: about 50/50.  So two guys move
off into the audience, two guys stay up there.  Heh.]

* National security: a pressing issue, with a cool back-and-forth on the Pentagon Papers, but no resolution on the point.

* Media literacy: learning how in the context of making a film that you
can radically alter how people understand a series of events.  Our
kids are far ahead of us.  They are learning how to be creators,
not just users.  They are re-mixers.  Pew says that 44% of
people had “contributed something to the Internet”, which is huge –
huge in terms of people becoming creators.  But most of what these
kids are doing is illegal — perhaps criminal under today’s law.

Headline for today: Lessig: “All of us should
aspire to become ‘just bloggers.’”  (A great side effect of the conference is new bloggers.)

* Terry raises the K-12 Initiative
problem: it turns out to be very possible to get digital versions of
textbooks put online and accessible to children with disabilities that
make it harder to read (blind, e.g.).  There’s a trade group
representing these publishers
who are focused on this issue — with some trepidation, but also with a
sense of the promise.  The law is convoluted in this area, and is
holding things back at this point.  There’s movement, with the
likely adoption soon of an XML DTD that’s standard for these
publishers.  But the economics, law, technologies, administrative
aspects of this issue are extraordinarily complex.

* Rebecca MacKinnon, (one can hear Ethan Zuckerman making the same point, from afar), draws our attention to
developing countries.  She knows what she’s talking about: her NKZone
weblog is an important idea.  Ben from OSIWA (in Dakar, Senegal);
Phillipp from Bridges.org, Heather Ford (a representative from Creative
Commons-South Africa), a Latin American, others question some of the immediate relevance
of the theory discussed here and focus us tightly on IPR issues.  Free culture is essential, most seem to agree.

* Alex Tarkowski: worries about free-riding upon the system generally,
and cites the peer production of term papers.  (Alex, to his
credit, has pursued the translation of Creative Commons licenses into
Poland).

One fun way to read Lawrence Lessig’s new book is to read a chapter or two each through:

1) a copy you buy online or at the bookstore;

2) a PDF copy you download for free on the Net;

3) a tagged html version that you access for free from the Net; and

4) an audio version you download for free on the Net. 

5) A fifth way, which I’d forgotten about: Lessig has a talk he gives on just this topic — hear him retell it in person, as he now is at iLaw, and as he’s done at public (and free) lectures all over.  The fifth is by far the most fun.  As great as the Net is, performance in real space is better.

Another five ways: Lessig just offered one additional possibility for how he’d fix the problem facing the recoding industry, based in large measure on the presumption that we’re in the midst of a “moment of transition in the architecture of the Net”:

1) set up an economic council to calculate the losses of the entertainment industries;

2) mutliply by 3 or 5 or whatever you’d like; 

3) write them a check for that amount for the next 5 years from the public;

4) in exchange for agreeing not to pursue the technologies and lawsuits they’re deploying that will kill the future of the network — heavy DRM, broadcast flag, etc.; and,

5) artists and intermediaries are fully compensated, and free culture flourishes.

Disagreement — friendly, collegial, but real — among our faculty lies
near the core of our research at the Berkman Center into Digital Media. 
One axis along which this disagreement plays out is between Prof.
Charles Nesson and Prof. Terry Fisher as to whether a better idea for
moving forward looks like an implementation of speedbumps (Nesson) or
an alternative compensation system (Fisher).  The current session
at iLaw pits Terry’s view against Charlie’s view. 

Charlie: “Copyright is abominable in some respects … gargantuan in
its reach…  Nonetheless, there is something to the copyright
system.  And if you could find some way to a middle path, it would
seem worth going for.”

I eagerly
anticipate the discussion period once they’ve each said their piece.

An upcoming event 
in June in Berlin that looks very cool: “Where Next for Copyright in
Europe?”  The speaker list includes two of our own: Prof. Terry
Fisher and fellow (and EFF staff attorney) Wendy Seltzer.  I’ve
heard Ian Brown of FIPR speak previously, and he’s excellent on these
topics.  There is so much going on in the EU on the copyright and
patent front right now, making such an event eminently timely.