I stumbled across two posts by Mike Linksveyer (ex Creative Commons now at GitHub) from 2014 in which he discusses framing of digital policy in relation to the Commons.
By IP, Lemley means intellectual property: mostly copyright, patent, trademark. That has been and will be increasingly a terrible frame for thinking about policy. It gives away the farmfuture to owners of the past, who, as Lemley notes “will fight the death of scarcity” as they have fought the Internet — with more criminalization, more lawsuits, more attempts to fundamentally alter technologies in order to protect their rents. This seems rather suboptimal given that we know the theory upon which IP rests is largely bunk. The alternative, assuming we still only wish to maximize innovation, is to make innovation policy the frame. This makes turning the enclosure dial up or down a sideshow, and pulls in non-enclosure incentives and a host of more indirect and probably much more important determinants of innovation, e.g., education and governance.
This [thining about IP as a form of government regulation] is certainly superior to the rights/owner/property characterization inherent in IP — it recasts “owners” as beneficiaries of regulation — and I think implicitly makes the case for switching one’s frame from intellectual property to innovation policy. That leads us to what the goal of “innovation policy” regulation ought be, and sufficiently proactive policies to achieve that. Should the goal be to maximize “innovation”, “creativity”, the “progress of science and useful arts”, or the like? It would be a huge improvement to sideline enclosure as the primary mechanism and retain the same top objective. But even that improvement would be short sighted, given how systematically innovation policy regulation has and will increasingly shape society. A success of imagination would be to make freedom and equality the top objectives of and constraints on innovation policy, and only then maximize innovation. The innovations generated by a free and equal society are the ones I want.
The second post is essentially a repost of a post by Luis Villa on the wikimedia [Advocacy Advisors] mailing list (which has since become [Publicpolicy]). In his post Villa respods to the draft of an EU study on Mapping of New
Business Models) by observing exactely the problems that we are trying to fix with this project:
- The framing is wrong – it should be “production models”, or “sustainability models”, not “business models” – the assumption that production of copyrighted works has to happen through “business” is a harmful and anti-democratic in an age where every citizen has access to tools that can publish to the entire world.
- Ditto use of “the industry”, as if “the industry” is the only meaningful producer of content. (Really, these two points alone could make for a great blog post; this paper is far from the only one that makes these two mistakes but is particularly blatant in use of the framing.)
- In part as a result of this framing, it is sad but not surprising that no citizen/public interest groups were consulted in the creation of the material. Not sure we’d want to say that to them publicly, but if we decide not to offer informal comment I’d want to say that publicly in a blog post when this is published.