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[ba-ohs-talk] 1) Protecting fair-use rights in the digital world, and 2) "Improving Our Ability to Improve", etc.

So, how should the Bootstrap Alliance think about the possibility of
organizing paradigm shifts in economics and law in order for the OHS to
succeed in moving from the "invisible hand" of A &  B economic/law
activities (i.e., more competitive production) to the strategy of
"creative destruction" as  C-economic/law activities (i.e., "improving
to improve")?    (01)

Well, here's some wise suggestions. According to Doug Engelbart:    (02)

               Moving from "invisible hand" to strategy -
               "The good news is that it is possible to
               build an infrastructure that supports
               discontinuous innovation.  There is no
               need at all to depend on mystical,
               invisible hands and the oracular
               pronouncements hidden within the
               marketplace.  The alternative is conscious
               investment in an improvement
               infrastructure to support new,
               discontinuous innovation."    (03)

               ... "Discontinuous innovation is much
               riskier,  in that it is much less
               predicable,  than continuous innovation.
               It disrupts markets. It threatens the
               positions of market leaders because, as
               leaders, they need to "listen" to the
               existing market and existing customers and
               keep building improved versions of the old
               technology, rather than take advantage of
               the new innovation.  It is this power to
               create great change that makes
               discontinuous innovation so valuable over
               the long run.  It is how we step outside
               the existing paradigm to create something
               that is really new."
               < http://www.fleabyte.org/eic-11.html#q >    (04)

Whereas, British Nobel laureate economist John Hicks who took up this
topic in his 1983 paper on “revolutions” in economics says:    (05)

               “Our special concern [in economics] is
               with the fact of the present world; but
               before we can study the present, it is
               already past. In order that we should be
               able to say useful things about what is
               happening, before it is too late, we must
               select, even select quite violently. We
               must concentrate our attention, and hope
               that we have concentrated it in the right
               place.    (06)

               “Our theories, regarded as tools of
               analysis, are blinkers in this sense. Or
               it may be politer to say that they are
               rays of light, which illuminate a part of
               the target, leaving the rest in the dark.
               As we use them, we avert our eyes from
               things that may be relevant. ...But it is
               obvious that a theory which is to perform
               this function satisfactorily must be well
               chosen; otherwise it will illumine the
               wrong things. Further, since it is a
               changing world that we are studying, a
               theory which illumines the right things
               now may illumine the wrong things another
               time. This may happen because of changes
               in the world (the things neglected may
               have grown relative to the things
               considered) or because of changes in our
               sources of information (the sorts of facts
               that are readily accessible to us may have
               changed) or because of changes in
               ourselves (the things in which we are
               interested may have changed). There is,
               there can be, no economic theory which
               will do for us everything we want all the
               (Hicks, John. “’Revolutions’ in
               Economics,” in John Hicks, Classics and
               Moderns, Collected Essays, Vol. III.
               Cambridge: Harvard University Press, 1983,
               pp. 3-16.)    (07)

Put succinctly, Hicks argues that economic science must adapt to the
nature of the economy. The growing importance of creative endeavors
appears to be what’s new in the New Economy. If so, the New Economy
represents a significant change in the nature of the U.S. economy, one
that is difficult to align with the paradigm of perfect competition. The
New Economy is highly competitive, but creative destruction, not
production, is the center of the competition. This implies, in line with
Engelbart and Hicks’s views, that for understanding the New Economy,
Joseph Schumpeter’s "creative destruction paradigm" may be superior to
Adam Smith’s "invisible hand."    (08)

So, as noted above, I'm now concerned that our Bootstrap Alliance
problem is more than simply debating issues like "Rethinking Licensing
Agreements, Micropayments, and Errors & Omissions liability insurance,
etc, especially now that Senator Hollings has introduced a new bill that
poses new threats to fair use of "creative destruction" leading to
paradigm shifts for "improving to improve".    (09)

Senator Hollings formally introduced a new bill that poses new threats
to fair use
On March 21, 2002,Senator Hollings officially announced the "Consumer
Broadband and Digital Television Promotion Act." In addition to
continuing the erosion of personal use rights, this bill will require
the incorporation of government-mandated copy protection technology into
every digital media device.    (010)

In 2001, Senator Hollings introduced a draft bill called the "Security
Systems Standards and Certification Act" (SSSCA). Many people thought
that the bill was so biased towards the media companies that it would
never pass the draft stage. But on March 21st, the SSSCA became an
official bill under the new name of the "Consumer Broadband and Digital
Television Promotion Act" (CBDTPA). This is bad news because it means
that there's a real chance that this bill could become a law.    (011)

More ... full text:
<  http://cryptome.org/broadbandits.htm >    (012)

We are advocating a Consumer Technology Bill of Rights that will
positively assert a consumer's rights to fair use. The Bill of Rights
will guarantee your ability to use your own digital media in the way
that you choose. With the support of consumers, we are working to have
the Bill of Rights passed into law. Our proposed Bill has already gained
support from numerous consumers as well as prominent executives and
venture capitalists, but there's a lot more that we need to do in order
to let Washington know that this is important.
< http://www.Digitalconsumer.org/ >    (013)

                    [For instance] "I worry about my
                    child and the Internet all the
                    time, even though she's too
                    young to have logged on yet.
                    Here's what I worry about. I
                    worry that 10 or 15 years from
                    now, she will come to me and say
                    'Daddy, where were you when they
                    took freedom of the press away
                    from the Internet?'"- Mike
                    Godwin, Electronic Frontier
                    Foundation    (014)

How to Get Active?
< http://www.Digitalconsumer.org/active.html >    (015)

1) Pamela Samuelson's Keynote address: Protecting fair-use rights in the
digital world
< http://www2002.org/speakers.html#samuelson >    (016)

Pamela Samuelson
Bio: <  http://www.sims.berkeley.edu/~pam/bio.html >    (017)

"Until very recently, copyright has been on the periphery of law and
public policy concerns because it provided highly technical rules to
regulate a specialized industry. The politics of copyright largely
focused on intra-industry bickering. The typical response of the
legislature to such intra-industry struggles has been to propose that
affected parties meet behind closed doors and hammer out compromise
language that would thereafter become enacted into law. It didn't matter
much if the language negotiated in the heat of the night was
incomprehensible (as has so often been the case) because the affected
parties understood it, and that was all that mattered. Copyright law
has, as a consequence, become highly complex and effectively unreadable.    (018)

One reason why a new politics of intellectual property is necessary is
that copyright now affects everyone. Advances in information technology
and digital networks allow everyone to become a publisher. Under the
Clinton Administration's "White Paper" on Intellectual Property and the
National Information Infrastructure, every access to and use of digital
information was a copyright-significant act because they involve
temporary copying of the information in the random access memory of a
computer, which the White Paper said violated the reproduction right of
copyright owners unless authorized by them. While this interpretation of
existing law is highly controversial among copyright lawyers, there is
some caselaw support for it in the U.S. and the European Union's recent
Directive on Copyright for the Information Society adopts it as the
right rule for the future.    (019)

Because copyright infringement by individuals is so difficult to police
in a distributed networked environment, copyright owners are
increasingly going after technologies that enable copyright
infringement. One strategy is very expensive litigation, such as the
lawsuits against Napster and other makers of peer-to-peer software.
Another is by support for new legislation such as Senator Hollings'
Consumer Broadband and Digital Television Promotion Act (S. 2048). The
Hollings bill would outlaw the general purpose computer and open source
digital media players. It would require all makers of digital media
devices to install technical protection measures vetted by the Federal
Communications Commission. Those who violated this law could go to jail
for a very long time. European Union officials  have expressed sympathy
for mandating technical protection measures as well, althoug they have
not yet formulated legislation to require this.    (020)

The Hollings bill is unlikely to pass during the current legislative
session but it should be taken very seriously. Hollywood won't be
satisfied until and unless general purpose computers have been tamed and
the Internet has been rearchitected to make it safe for their products.
Quite possible in the near term are little "mini-Hollings" bills focused
on specific technologies (e.g., requiring makers of digital televisions
to build sets to respond to broadcast "flags" which would allow or
disallow copying of particular programs). Once several of these bills
have passed, the momentum for more general legislation is likely to
build. To oppose such legislation, it is not enough to say that the
Hollings bill or little mini-Hollings bills are brain-dead or
unenforceable. If you think general purpose computers and open
information environments such as the World Wide Web are valuable, you
are going to have to help build a new politics of intellectual property
that will preserve these devices and infrastructure.    (021)

This will not be easy because of two important legacies of the old
politics of intellectual property: First, copyright industry groups have
cultivated relationships with policymakers in the executive and
legislative branches over a long period of time. They have built up
trust with policymakers, and they know how to get their messages across
to this audience very effectively. Second, the public has gotten used to
the idea that copyright doesn't concern them. It is, as a consequence,
virtually impossible to mobilize the public when changes to copyright
law are proposed. Even though changes such as the Hollings bill will
almost certainly have profound impacts on the public's use of
information, it is difficult for most people to realize what's at stake.
Even when some members of the public, such as USACM's public policy
committee, do become engaged in the policy debates about copyright, they
lack the political heft of industry counterparts, not the least because
they are less fruitful sources of campaign contributions.    (022)

A new politics of intellectual property is needed to counteract the
content industry's drive toward ever stronger rights. More importantly,
a broader awareness is needed that copyright deeply affects the
information environment for us all. The digital networked environment
has surely changed the economics of production of intellectual property
(e.g., the marginal cost of copying is effectively zero), the economics
of distribution (e.g., the cost of transmission via the Internet is also
effectively zero), and the economics of publication (e.g., posting
information on the web is also radically cheaper than in the print
environment). This means, among other things, that the actions of
individuals can have the same potential market-destructive impact as
those of commercial counterfeiters in the olden days. This helps to
explain why the content industries have been so anxious about computers
and why they favor moving to a pay-per-use or mandated trusted system
policy for all commercially valuable information in digital form.
Without imaginative proposals for more balanced solutions and without a
political movement to support and sustain such proposals "in other
words, without a new politics of intellectual property" there will be
little to stop the current politics from having its high protectionist
way.    (023)

James Boyle has argued for a new politics of intellectual property in
his essay "Environmentalism for the Net." This essay points out that in
the 1950's there was no concept of the "environment." Logging and mining
companies thought that they alone were affected by legislation
concerning natural resource issues and they lobbied for policies that
sometimes caused erosion and pollution to ruin streams and lakes, scar
the landscape, and kill off of fish and other wildlife. It took a while
for bird-watchers and hunters (as well as society more generally) to
realize they had a common interest in preservation of nature. Together
they invented the concept of the environment, and this concept enabled a
powerful political movement to protect it. What is needed is a similar
movement to protect the intangible interests we all have in an open
information environment, in robust public domain, and in balanced
intellectual property law. It will sound strange perhaps to put it this
way, but our information ecology really will be disrupted if
intellectual property rights get too strong. So far Greenpeace hasn't
taken up the cause, but maybe they should.    (024)

Here are some thoughts about who might participate in a new politics of
intellectual property aimed at promoting a balanced information ecology.
Obvious candidates include authors and artists (who need access to
information, a robust public domain, and meaningful fair use rights),
educational institutions, libraries, scholarly societies, computing
professionals, computer manufacturers and other equipment providers who
don't want Hollywood to be in charge of their research and development
divisions, telecommunications companies and Internet service and access
providers (who want to serve their customers and not become a new branch
of the police), consumer groups, civil liberties organizations, and
digital media companies who may have some radical business models that
just might work if not shut down through litigation by established
copyright industry groups who want to protect preferred business models.    (025)

The agenda of a new politics of intellectual property obviously needs to
be about more than just opposing the high protectionist initiatives of
copyright industry groups. It should, of course, oppose legislation such
as the Hollings bill, but the new politics needs to have a set of
affirmative policy objectives of its own. The new politics might, for
example, propose legislation to protect consumer rights, such as fair
use, under copyright law. Digitalconsumer.org has made a good start on
such a project by formulating a users' "bill of rights." A new politics
might also support legislation to require digital rights management
systems to protect the right of consumers to read and listen
anonymously. It might also support changes to the Digital Millennium
Copyright Act anti-circumvention rules so that researchers like Edward
Felten and his colleagues don't need to worry about getting sued when
they do scientific research and publish the results. And it should also
take an international perspective because as we all know, the Internet
and the World Wide Web are inherently international in character. It is
necessary to care about the intellectual property rules of every nation
because overly strict rules in one jurisdiction can mean that no one
will be safe posting information on the Web without fear of liability.
Recall that Dmitri Sklyarov was arrested in Las Vegas, Nevada, for
having written a program in Russia that was available on the Web because
Adobe persuaded the Justice Department it violated the DMCA
anti-circumvention rules.    (026)

Articulating the societal benefits of an open information environment,
such as the World Wide Web, is probably the single most important thing
that the new politics of intellectual property might do. This is an
activity that participants in this conference are eminently capable of
doing. The robustness and efficiency of the Internet and the Web as a
global communications medium is a product of its present end-to-end,
open, nondiscriminatory architecture. Computers are not only more
valuable to people because they can so quickly and easily copy
information from disk to disk, but the ease of copying enables many
beneficial new uses of information which copyright owners neither need
to nor ought to be able to control. Innovation and competition would be
stifled if mandated trusted systems became the law. Moreover, the market
for digital information products may well be vastly smaller if every
piece of information must be tightly locked up at all times. Branko
Geravac once recommended that publishers "protect revenues, not bits."
Maybe a new politics of intellectual property could help copyright
industries get re-focused on providing content that a wide array of the
public might want to enjoy instead of putting so much effort into
suppressing innovation and competition in the information technology
industry and the digital networked environment through lawsuits and
unsound legislative initiatives."    (027)

2) April 27, 2002, Douglas C. Engelbart Keynote address, World Library
Summit in Singapore: "Improving Our Ability to Improve"    (028)

"Difficulties with knowledge governance. - As another example of our
still relatively primitive ability to deal with information  exchange
among groups, consider the chaotic and increasingly frightening
direction of new laws regarding knowledge governance - most notably
reflected in laws regarding copyright.  Because it is generally
technically advanced, one might think that my country, the United
States, would be representative of leading edge capability to deal with
knowledge governance and knowledge sharing.  But, instead, we are
passing increasingly draconian laws to protect the economic value of
copies of information.  In the US, we are even  contemplating laws that
would require hardware manufacturers to take steps to encrypt and
protect copies (ref. 2).    (029)

We are doing this while entering a digital era in which the marginal
cost of a copy is zero - at a time where the very meaning and
significance of the notion of "copy" has changed. It is as if we are
trying to erect dikes, using laws, to keep the future from flooding in..    (030)

The immediate effect of all this is to enable a dramatic shift in
control to the owners of information, away from the users of information
(ref. 3) - a strategy which will almost certainly fail in  the long run
and that has confusing and probably damaging economic consequences in
the short run.    (031)

The most modest conclusion that one might draw from watching the U.S.
attempt to deal with knowledge governance in a digital age is that the
legislators have a weak understanding of the issues and are responding
to the enormous political power of the companies with vested interest in
old ways of using information.  Looking somewhat more deeply, it seems
quite clear that we are ill-prepared to come to terms with an
environment in which the social value of knowledge emerges from
collaborative use of it.  The entire idea of value emerging from
sharing, collaboration, and use of knowledge - as opposed to treating
knowledge as a scarce resource that should be owned and protected - is
anathema to the  20th century knowledge owners, who are fighting hard to
protect their turf."
< http://www.fleabyte.org/eic-11.html#q >    (032)

Other "Unfinished Revolutions"    (033)

          "The key to building a more powerful capability
          infrastructure lies in expanding the channels and
          modes of communication - not simplifying them.    (034)

          This is very powerful, exciting stuff.  If we begin
          to act on this notion of our relation, as humans, to
          these amazing machines that we have created, we
          really begin to open up new opportunities for growth
          and problem solving."    (035)

          ... "Thinking back to our research at SRI leads me
          to another key feature of development work at the C
          level:  You have to apply what you discover.  That
          is the way that you reach out and snatch a bit of
          the future and bring it back to the present:  You
          grab it and use it."    (036)

          ... "Another difference between innovation at the C
          level and innovation that is more focused on
          specific results is that, at the C level, context is
          tremendously important.   We are not trying to solve
          a specific problem, but, instead, are reaching for
          insight into a broad class of activities and
          opportunities for improvement.  That means attending
          to external information as well as to the specifics
          of the particular work at hand.  In fact, in my own
          work, I have routinely found that when I seem to
          reach a dead end in my pursuit of a problem, the key
          is usually to move up a level of abstraction, to
          look at the more general case." - Doug Engelbart,
          Keynote address, World Library Summit in Singapore
          (2002) < http://www.wls.com.sg/main.htm >    (037)

For instance, .... "Just over a century ago, Guglielmo Marconi (1901)
freed communications from the limitations of physical wiring when he
invented the wireless UWB radio.    (038)

"We hear a lot these days of powerful companies with effective
monopolies (like local telephone incumbents or copyright holders) using
the law to squelch new technologies; it is a theme being debated
particularly now with the appearance of Lawrence Lessig's book The
Future of Ideas.    (039)

To recognize what is at stake, it helps to recall earlier bouts in the
fight between easy profits and long-term progress."
(See: Entrenched interests tried to sue inventor Marconi: Father of
Radio < http://www.oreillynet.com/cs/weblog/view/wlg/953 >)    (040)

Today, in 2002, "Unbundling the Spectrum" is now feasible since in a
UWB-powered world, specific frequencies are meaningless, because the
information travels in such small packages. UWB technology erases the
need for an agency charged with regulating the distribution of radio
signals--and effectively strips away from governments a tremendous
amount of power over the governed. A UWB signal can't be intercepted and
it's very hard to jam. Governments, the ultimate control freaks no
matter how they are constructed, are reflexively opposed to the totally
free flow of information, especially when they can't listen in on or
exert control over that information.    (041)

          "Radio's oldest technology is providing a new way
          for portable electronics to transmit large
          quantities of data rapidly without wires. ...
          Ultrawideband wireless technology should make
          possible an entirely NEW CLASS OF ELECTRONIC DEVICES
          and functions that would change the way we live".
          >    (042)

The Spectrum as Commons: Digital Wireless Technologies and the Radio
Ikeda Nobuo (ikeda-nobu@rieti.go.jp)
Japan Research Institute of Economy, Trade and Industry    (043)

"Current systems of radio administration, based on the government
license, are inherited from the beginning of the 20th for the purpose of
regulating radio broadcasting stations. They are obsolete for the
Internet age, because next-generation technologies such as the wireless
Internet, Software Defined Radio, and Ultra Wide Band will make it
possible for all users to share broad band. They cast grave doubts on
the presupposition of the licensing system that radio spectrum is
"scarce resources".  In this article I propose a new policy of radio
administration that would distribute marketable rights of spectrum usage
instead of licenses, and unify the transport layer by the Internet
Protocol, thereby liberalizing services completely. Ultimately it would
be desirable to treat the spectrum as commons to be open for free use,
provided that some definite criteria are met."
< http://www.rieti.go.jp/jp/publications/dp/02e002.pdf >    (044)

FCC's current understanding of how wireless networks scale and the
illusion of spectrum scarcity
>    (045)

In conclusion, IMHO, the Bootstrap Alliance needs to collaborate on 1)
"Digital Consumer Technology Bill of Rights" and 2) a "Wireless Device
Bill of Rights" for insuring an interoperable infrastructure in
decentralized peer networks and sharing the (OHS/DKR) Bootstrap. For
example:    (046)

a) UWB Cognitive Radio: Toward the Wireless Device Bill of Rights?
>    (047)

   * Article 1:  Any intelligent wireless device may, on a
     non-interference basis, use any frequency, frequencies or
     bandwidth, at any time, to perform its function.    (048)

   * Article 1, Tenet 1:  To exercise rights under this Article,
     intelligent devices must be mentally competent to accurately
     determine the possibility of interference that may result from
     their use of the spectrum, and have the moral character to not do
     so if that possibility might infringe on the rights of other users.    (049)

   * Article 1, Tenet 2:  To exercise rights under this Article,
     intelligent devices must actively use the wireless spectrum within
     the minimum time, spatial and bandwidth constraints necessary to
     accomplish the function.  Squatting on spectrum is strictly
     prohibited.    (050)

   * Article 2:  All users of the spectrum shall have the right to
     operate without harmful electromagnetic interference from other
     users.    (051)

   * Article 2, Tenet 1:  Priority of rights under this Article may be
     determined by the proper authorities only in cases of National
     emergency, safety of life or situations of extreme public interest.    (052)

   * Article 2, Tenet 2:  Rights under this Article may be exercised
     only when the systems exercising the rights are designed , as
     determined by the state of the practice, to be reasonably resistant
     in interference.    (053)

   * Article 3:  All licensing, auctioning, selling or otherwise
     disposition of the rights to frequencies and spectrum usage shall
     be subordinate to , and controlled by Articles 1 and 2, above.    (054)

b) Interoperable Infrastructure in Decentralized Peer Networks and
Sharing the Bootstrap    (055)

"The most difficult and critical part of creating a widely used and
effective peer network is bootstrapping it with enough resources to
gather momentum.    (056)

All of the networks in existence today started out small, and gradually,
over time amassed more and more users until a critical point was reached
which brought rapid popularity and vast numbers of resources.    (057)

This is Metcalfe's law in action: the "value" or "power" of a network
increases in proportion to the square of the number of nodes on the
network.    (058)

Bootstrapping peer networks - waiting for the exponential effect of
Metcalfe's law to kick in - is a very time consuming and critical
process. A good client will remain in obscurity unless it can reach this
threshold.    (059)

It would be orders of magnitude more effective to 'share' this bootstrap
task by implementing the necessary features as an infrastructure service
which many third party peer applications can utilize.  The FastTrack
network is one existing example of this kind of architecture. Anyone can
purchase a license to the FastTrack library and instantly gain access to
the same millions of users on the network who are using other
implementations like Morpheus, Grokster or Kazaa.    (060)

This kind of architecture benefits not only the end user applications
who utilize this shared infrastructure, but also the infrastructure
itself, by increasing the rate of adoption and effectiveness."
< http://cubicmetercrystal.com/alpine/p2p-interop.html >    (061)