Public domain in peril? Not again!

Net-heads and civil libertarians are worried that the public domain is being eroded and enclosed. Media owners fear a ravenous, technology-enhanced public domain will eat their businesses. Who’s right? Neither.

The public domain is a tricky concept to define. As a starting point, we can be sure that every community in history has had a public domain of some kind something defined as a shared resource: grazing land, communal housing, ideas. We also know that it’s not a stable concept, that it shrinks and expands, century by century, place by place. In some periods the public realm is rich and productive (Florence in the Renaissance), in others thin and troubled (Soviet Russia). A good public domain has a signature that we recognise. It is open, forgiving of experiment, balanced as to ownership and exploitation of ideas, innovative. We’re going through a change right now, thanks to a wave of technical and social change and to the arrival of cheap, networked computers. Some think that we’re at an ‘inflection point’, that things could go either way and we could wind up with an immeasurably richer public sphere or that it could wither and collapse. The fact that everyone is thinking about the public domain now is instructive. We only notice it when it’s changing.

The war of the file sharers and the media owners is a great drama, a conflict on an epic scale (books will be written, movies will be made) – but it’s not the first time public and private have clashed. Attacks on the public domain usually come from ruling classes and economic elites: enclosers, industrialists, colonists. Defence is organised from below: Diggers and Levellers, squatters and trespassers. For such a contested concept it’s remarkably robust, though. Centuries after capital was first employed to organise and exploit natural resources our world has demonstrably not been reduced to a homogenous field of ownership and exploitation. It remains an uneven mixture of public and private – and there’s a great deal of traffic between the two. Even that haven of the private, America, sustains a healthy public domain and a real debate about its value and its preservation. In the US alone, four campaigning groups have been set up in response to recent encroachments on the public domain by big business: Creative Commons, Public Knowledge, Digital Consumer and Chilling Effects. Lawrence Lessig’s magisterial The Future of Ideas: The Fate of the Commons in a Connected World is a New York Times bestseller and Esther Dyson devoted the whole of June’s Release 1.0 to the issue. The public domain has knocked privacy off the anxiety top spot and has the wired classes chattering.

In the world of ideas, new technology persistently upsets our understanding of what’s public and what’s private. Printing with movable type, photography, audio and video cassettes, genomics, open source software, CCTV and now file sharing – all alter the context because they permit us to move value – social, cultural, economic – from one realm to the other. Sometimes a technology can work to enclose or shrink the public domain. The patenting of organisms and genes, for instance, redefines a historically public category of knowledge as property, exploitable and tradable like other assets. To the Greens and the developing world, terminator genes and patented seed stock promise to remove vital tools and know-how from the public domain all together – condemning farmers and communities to indefinite servitude to Western Agri-Business.

But it’s not a one-way street. To the media firms, Napster and its surviving clones promise the final dissolution of their ownership rights in digital media. They see the file sharers (the industry’s own ?axis of evil’) moving their entire asset base into a hugely expanded public domain. Consider this dizzying fact: it’s certain that every track from every major label’s current catalogue is now online for free download somewhere. File sharing is the public domain’s most vigorous counter-strike yet, a snatch operation of extraordinary effectiveness. The net says: ?we, the networked people, hereby redefine your expensively-cultivated asset-base a public good and, furthermore, jointly and severally rescind any contract we might once have had with you to pay for this stuff. It’s ours now. Sorry, guys.? Should we be surprised that the record labels and their trade bodies fight back? And fight back as if this were their last fight? No, we shouldn’t.

So is this really the end for the media owners? Has their principle asset – the bank of content, talent and potential in which they have invested so much – now been effectively written down to zero? Have the file sharers done for the entire media industry? Predictably, and perhaps boringly if you were looking for the big story, the answer is ?no’. The media firms will adapt to the new distribution realities and stretch to accommodate entirely new models for rights exploitation. These new models, including legalised file sharing, will sit quite comfortably alongside classically packaged and distributed content – just as the racks of vinyl sit weirdly alongside the CDs in your local Mega Media Outlet. Remember, audio cassettes and video tapes went from an industry-threatening pirate’s charter to a profitable part of the value chain within five years of their introduction. No one should underestimate the magnitude of the challenge faced by the big media owners but they have precedent, money and influence on their side.

In fact, in the battle with the net, the media owners are definitely on the front foot. Their economic and political clout, especially in the USA, has won them some big victories. File sharing networks have been shut down or compromised. New laws extend the definition of intellectual property to shut down ?loopholes’ like fair use, home copying and copyright time-limits. Other laws propose inserting intrusive new hardware to dumb down useful PCs – the tiny media tail wagging the vast computer industry dog. In the media owners’ new climate of fear, ordinary consumers are implicitly redefined as pirates and their PCs as accessories to a crime. The public domain is not about to cave in – it has weathered worse storms – but the media industries, perceiving an existential threat of unprecedented scale, have ?gone nuclear’. In so doing they threaten to impoverish the public domain by removing copyright material from its reach indefinitely. More immediately, their over-reaction leads to the realistic risk that their practiced string pulling and favour calling might close off new areas of economic value, for the media industries themselves as well as for the manufacturers, telcos and broadband firms ready to meet the emerging needs of digital consumers. As any downloader will tell you for nothing, the best response to the file sharers’ resurgent public domain is not to shut it down but to promote legal alternatives that leverage the industry’s assets, infrastructure and legacy to enhance it.

Being wrong about technology

We always get the final effects of new technology wrong, usually by a mile. The big media companies are no exception.

People routinely over-estimate the effects of change – technological change especially. Where technology is involved, the machines are assumed to be in charge. This is what they call technological determinism. Bill Joy, programming guru and Sun co-founder, is a born-again determinist. He gave us a cast-iron determinist case study when he famously over-estimated the implications of artificial intelligence, nano-fabrication and biotech to conjure up a nightmare of our ultimate enslavement by robots in Wired Magazine. His analysis assumed the unimpeded victory of tech over mere flesh (John Seely Brown and Paul Duguid, authors of The Social Life of Information, a critical corrective to determinists and absolutists everywhere, disagreed with Joy). Joy’s fantasy was a dystopian inversion of the euphoric norm but, like techies everywhere, he argued exclusively from the theoretical capabilities of the technology, making no allowance at all for the countervailing force offered by a technology’s context – social, economic and political.

You might not find the analogy re-assuring, while the Indians and Pakistanis are squaring off in Kashmir, but nuclear deterrence offers a pretty good counter-example. The potential of the atom bomb is to eliminate all life on this planet in the blink of an eye.This potential, though, has been comprehensively neutralised by a complicated human-scale context for nearly 60 years. That’s not to say that we won’t all die in a nuclear conflagration but rather that, if we don’t, it will be because human beings wouldn’t let it and not because of a failure in the blueprint for the technology.

There’s plenty of evidence that the potential of a new technology is no guide to its actual effects – that the technology is not in charge at all. A new technology’s context – messy, contingent and human – always gets in the way, interferes. The irony of the media owners’ hysteria over file sharing is that the media provide some of the best case studies for the decisive role of context. Question 1: which of these technologies was widely supposed to herald the outright destruction of one or more earlier ones: printing, photography, the gramophone, the telephone, radio, television, magnetic tape, the photo-copier, audio cassette recorders, video cassette recorders, DAT recorders, MiniDisc recorders. Answer: all of them. Question 2: which of them actually destroyed anything? Answer: none of them.

Only an economic numbskull would argue that file sharing will have no effect on the people who own the shared material. It’s the scale and direction of the effect that’s in doubt. The rights owners, not for the first time, make the most literal possible reading of the technology. They can see only its destructive potential so their official estimates of economic damage are always apocalyptic, outcomes always terminal (and, like anyone defending an entrenched position, they have good reason to exaggerate the impact of change). But the rights owners’ over-estimation is becoming obvious. Five times more tracks were downloaded last year than purchased legally, more blank CDs were sold than pre-recorded ones. On the face of it, as normally pro-media owner economist Stan Liebowitz points out in an interview in Salon (may require you to subscribe), such enormous economic substitution has already occurred that the record industry should have been wiped out. Yet the fall in CD sales in the most exposed economy of all, the USA, totals no more than 5%. Where is the hidden damage? Could it be that context – the friction supplied by long-held purchase and consumption habits and by our huge investment in the way we do things now – is more influential than the unarguable technology itself? Entrepreneur Demands More Regulation Shock! logo

Since the draft of the Communications Bill came out a few weeks ago, I’ve been worrying (here and elsewhere – see my letter to The Guardian) about the net’s mysterious (but total) omission: not one mention in over 300 wide-ranging pages. In 1992 I’d have expected such a gap, in 1997 I guess I might not have been surprised. In 2002 it’s a lacuna worthy of the X Files. Still I was torn. Don’t we net folk – ballsy frontier types after all – relish our ‘invisible man’ status? Shouldn’t we count ourselves lucky? The answer, at least for me, is ‘no’. The net’s absence (explicit and deliberate) from the bill’s provisions is like being air-brushed out of the Politburo May Day photo. It seems to suggest impending exile (if not actual assassination). It makes me paranoid.

Ofcom’s scope should be extended to accommodate the net. I don’t suggest this casually. Regulating a global network capable of an effectively infinite range of expression from a single, National perspective is probably impossible. In looking for an appropriate regulatory ‘footprint’ I settle on a much-needed redefinition of public service provision for the networked era, the nearest to a ‘natural’ target for regulation that the net offers.

I wrote up my worries in more detail for the FT.
What do you think?

“Don’t put full cup in

“Don’t put full cup in backpack for later”

Quirky POS graphic at West Hampstead station cappuccino stand. The stand (part of a new chain, or at least new to me) is covered in whacky urban irony, all done in one of those fucked-up-beat-poet ALL-CAPS manuscript typefaces you get from Emigre or somewhere. This one made me laugh and laugh. Is it the same crowd whose coffee cups say “I think I’m it”?

The unlikely persistence of the

The unlikely persistence of the PC

Draft Communications Bill notwithstanding, the digital action is still resolutely – and against all the odds – on your PC. With the doughty exception of Sky TV, digital telly in the UK is a basket case. 3G is looming but more as an existential threat to the operators than a new wave of fun and interactivity in your pocket.

Meanwhile, more than a decade of firm predictions of the PC’s demise have come to nothing. Given new life by the net, the PC – as a platform and as a way of life – is now home-base to an entire generation of wired young people – a generation with none of their parents’ neuroses about technology. They just jump in and get on with it and in so doing they’ve secured for the PC at least another decade of productive life. Here’s a story I wrote about this for The Guardian on 9th May:


In the distant past I helped some friends with a blog (only that’s not what they were called then) called It parodied the ‘wired’ generation and it got its start in the wake of the failure of the UK edition of Wired Magazine. We ripped off the prototypical blog style of (also no longer with us). A linear, unpaginated splurge with inline links and images. This was when? 96? 97? Anyway, that’s my credentials sorted out. Not first but ages ago!. Here, courtesy of blogger, I’ll put the things I write occasionally for The Guardian and The FT and, naturally, also the things they won’t print, otherwise it wouldn’t be a blog… Elsewhere at you’ll find pictures of my family, my biog and little of consequence.