TOC Commons sharing? No progress since Alexander the Great Your Turn

These fillips give priority to privacy, more specifically eprivacy, as befits the site which hosts them. Since current rights to data ownership are blatantly biased to favor corporations and famous stars against common individuals (see 5/23/06 and 10/24/06 fillips), I am always quick to signal privacy abuse (see 5/30/06 and 7/25/06 fillips) and laud privacy activists (see 2/27/07 fillip).

Not all information can be tracked to a single, indisputable owner though. Creation is often built upon many individual sources. Too much emphasis on individual data rights threatens to sterilize the artist by putting his or her cultural environment off limits. At a time when one can remix songs and videos in a matter of minutes, why allow a hundred years of protection, media lobbyists' bare minimum (1)? Jean Giraudoux (2) pleasantly named a play of his Amphitryon 38 in view of all his predecessors. Picture him feverishly tracking down the heirs of Plaute and Molière before putting pen to paper. Anchored by the Creative Commons initiative (3), a school of thought argues for freely sharing intellectual property to encourage creativity.

The tension between intellectual creativity and property is not limited to the case of artists and copyrights. Inventors and patents, developers and license agreements come to mind immediately.

But why not take the broad view ? In cross-reference analysis, one parses hundreds or thousands of documents to determine significant nodes. Whether it leads to better answers from current search engines or to new leads for intelligence agencies (4), the end product is undeniably both creative in itself and derivative with regard to the original documents. In our connected, digital world, the word document itself should be taken to include each user's click history, such as navigation and search patterns. Web science (see 11/07/06 fillip) is caught between the conflicting rights of scientific inquiry versus privacy (see 8/15/06 fillip).

Solutions cannot be found to the expense of eprivacy. Markets, especially when value-based (see 8/8/06 fillip), should provide the correct framework (see 5/09/06 and 6/13/06 fillips). But one still need to face some issues.

Dealings of any kind suffer from the very nature of ownership. In Proudhon's iconoclastic casting, "Property is theft" (5). Indeed an owner enjoys the right to deprive others from the benefits of what is owned and needs not justify this exclusivity. The right not to deal hardly promotes collective creativity. In the case of intellectual output, this problem is compounded by the nature of popular demand. Since few people voluntarily settle for second best while digital reproduction costs almost nothing, offers of the first rank often generate gains out of proportion with the initial investment. Collective creation is thus doomed from the beginning. Stars would rather not share and specks of dust have little to gain.

Willingly or unwillingly collective creations do occur though and succeed commercially. But how one is to apportion the gains in case of a disagreement ? And disagreements are bound to happen when original sources are ignored.

  • Saul Hansell reports that Microsoft recently lost a patent infringement case to Alcatel-Lucent worth $1.52 billion (*). Microsoft's position is that its use of the MP3 format in Windows is covered by a prior $16 million payment to the Fraunhofer Institute. As its strategy is to integrate any popular feature into Windows, one might argue Microsoft had it coming. My point is neither on this or other aspects of the case but on the scale of the disagreement: a one to ten ratio in values and not even the same party.
  • Ironically the same Microsoft is threatened by the European Commission of a penalty potentially in excess of $1 billion for licensing technical information about Windows under unfair conditions. As filed by Tobias Buck (**), it is claimed Microsoft asked for "35 percent of the net operating profits made by selling products designed with the help of the license". Has Alcatel-Lucent given the store away by merely asking Microsoft for "0.5 percent of the total value of Windows computers sold" ?
  • The most dramatic illustration this week remains how Joyce Hatto's husband, a sound engineer of an unsound mind, pillaged other pianists' recordings over ten years and 100 CD's to inflate his wife's reputation. Alan Riding's articles (***)(****) would make the basis for an excellent novella were not the plot stretching readers' credulity. The point is that William Barrington-Coupe's virtual virtuoso had met with critical acclaim. Now his wife has died a second death, how should he compensate his sources ?
Tools such as flexible license terms (3) and confidential market platforms (6) can help create active, liquid markets. I salute the volunteer-based accomplishments of collective efforts such as Wikipedia. Such peer productions, to use Yochai Benkler's expression (7), eliminate price from value trading as a matter of choice. But, despite Yochai Benkler's argument, failing reproduction costs cannot justify pricing information for naught as a matter of course (see 8/01/06 fillip) and so peer production is not a complete solution. The challenge is rather to distribute collective gain to its several sources.

Ideally one only needs a compelling way for participating owners to deal, whether before or after the collective creation. Recall that digital piracy tends to limit the gains derived from intellectual property (see 2/20/07 fillip). The more popular the output, the shorter the time to copy. Why not then replace time limits on ownership by ceilings on gains to be had from a creation, according to some broad categories, songs, patents etc...? A severe constraint on property rights certainly, but a very realistic one, in the spirit of the King ordering le Petit Prince to do what he, le Petit Prince that is, wants to do (8).

With this in mind, here are six rules to give participants to a collective creation a way to deal in all cases with maximum freedom (9):

  • for the type of intellectual property concerned, both M, the maximum owner's gain, and m, the minimum source's gain, are defined by law
  • the collective creation is the responsibility of a general creator with the participation of essential and non essential sources
  • a source can always claim it is not essential but must participate. Non essential sources are paid m, half upfront and half before anybody else
  • the general creator can always decline to qualify a source as essential but must, if the source disagree, eliminate it from the creation
  • once non essential sources have been paid, half of the remaining gain goes to essential sources and the general creator, equally, up to M each
  • within the M limit, the remaining gain is shared by mutual agreement among all essential sources and the general creator or is taxed away
After his death, Alexander's generals famously quarrelled for several generations about how to share his empire. 150 years or so later Rome moved in and started to settle all disputes by liquidating their kingdoms. My rules come a bit late for them but could Douglas Heingartner turn his analysis of MP3's complex paternity (*****) into a new game ?

I hereby grant him and any other taker a non exclusive license to the rulebook, subject to applying these very rules to ePrio as a source.

Philippe Coueignoux

  • (*) ........... Microsoft Loses Case Over Patents, by Saul Hansell (New-York Times) - February 23, 2007
  • (**) ........ Threat of further EU fines for Microsoft, by Tobias Buck (Financial Times) - March 1st, 2007
  • (***) ...... A Pianist's Recordings Draw Praise, but Were They All Hers?, by Alan Riding (New-York Times) - February 17, 2007
  • (****) .... Pianist's Widower Admits Fraud In Recordings Issued as His Wife's, by Alan Riding (New-York Times) - February 27, 2007
  • (*****) .. Patents Fights Are a Legacy of MP3's Tangled Origins, by Douglas Heingartner (New-York Times) - March 5, 2007
  • (1) see a worldwide view on copyright protection, by the Online Books Page (University of Pennsylvania)
  • (2) for more information on this XXth century French playwright, see Jean Giraudoux in the Wikipedia
  • (3) see Creative Commons in the Wikipedia
  • (4) see Open-Source Spying, by Clive Thompson (New-York Times Magazine) - December, 2006
  • (5) see Pierre-Joseph Proudhon in the Wikipedia
  • (6) ePrio's matching technology comes to mind.
  • (7) The Wealth of Networks: How Social Production Transforms Markets and Freedom, by Yochai Benkler (Yale Law School) - 2006, 512 pages
  • (8) see Le Petit Prince, by Saint-Exupéry in the Wikipedia
  • (9) see Game theory in the Wikipedia
March 2007
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