Dirt: I’m not owned!
On web3, copyright and the ethics of ownership.
Dirt is a daily email about entertainment.
Daisy Alioto in conversation with Parker Higgins. Parker Higgins is the Director of Advocacy at the Freedom of the Press Foundation, and previously directed copyright activism at the Electronic Frontier Foundation. He writes about information policy and technology.
Daisy Alioto: When I talk about ownership in general, it’s usually in the sense of what people feel like they own. Most of our cultural criticism is around the emotional relationship to things.
Parker Higgins: “What do you feel like you own” is actually a reasonably good definition of ownership. The verb “to own something” can have a lot of different definitions and can imply a lot of different rights and powers and abilities to restrict and that sort of thing. It’s really a familiar ambiguity to people who worked in and around copyright for a long time so the interesting thing has been to watch people rediscover this. And some of this is glib to say, well when you buy a book, you own a book. You buy a copy of a book you certainly own it in some regards but we know intuitively there are some things you can’t do with that book, like read it and then adapt the text into a movie. Just because you can’t do that doesn’t mean you don’t own it! This is all very intuitive and I don’t expect this part to be mind-blowing but yeah of course we mean a different thing with the word “own” with regards to an ape picture. The way ownership works is somewhat particular to the field—in the same way that when you buy a piece of lumber you’re allowed to build whatever you want with it, but if you buy a book you’re not allowed to adapt it into a movie. So anyway, all this is to say the concept of ownership always has been slippery.
DA: Dismissing NFTs on the basis of ownership is not particularly persuasive in that ownership is relative to whatever object we’re talking about. Coming back to the ape picture, and the idea that if I can see your NFT then I can own it because I can save it to my computer. There’s plenty of things that we encounter on a daily basis, including somebody’s profile picture or face, knowing that we can’t own it in the same way that they do. Trying to make use of it even if it doesn’t cross into being illegal or a huge taboo is still ineffectual because we’re not exercising ownership.
PH: In economic terms you refer to the excludability of a good. Like: what you can keep other people from doing if you own something. Even with very physical goods, you don’t have perfect excludability. With real property you can say you own this but there’s an easement for public right of way and people are allowed to walk through it. Or you own this but you aren’t allowed to build in certain ways. It feels silly to dwell on this because it’s so intuitive and it’s a construct, it’s not the only way we could set up property.
DA: But if it’s so intuitive, why do people who should have a framework to understand—because they live their lives very digitally—not understand it. Is it that they just don’t like this model of ownership?
PH: Well I say intuitive, and I’m picking straightforward examples, but the flip side of it being intuitive is that it really is only intuitive in the sense that we only have our intuition to guide us on some of this. And again, this isn’t new to digital goods. There are a few creative fields where copyright doesn’t apply. Comedy is one of these. You basically can’t obtain copyright on a joke, but if you start copying another comedian’s jokes you are going to get shunned from the community. However, it takes a while for those social constructs to get hammered out. This is something we encountered when I was at EFF and talked about a lot: when you are breaking new ground and new territory and the rules haven’t caught up or there’s not a firm code you rely on metaphors and analogies to things that already exist and those are necessarily imperfect. And in places where the metaphors are imperfect you do have a real possibility of misunderstanding. I think one of those metaphors is ownership and property. When you say “ownership” but you really mean that you control the key that’s a signature that is recorded next to the ID number associated with this picture and I’m going to call that owning the picture, that elision does introduce the possibility of misunderstanding.
DA: Right, and then you get into the territory of “oh, these people are just reinventing stuff that already exists.” Which I understand, I mean there are some egregious examples of that but from my perspective, if it already existed with the exact utility that is being proposed then it wouldn’t be possible to invent it or for it to have any novelty at all. Clearly there is something about it that is new whether people see a value in that is their choice. Or “oh, these people have just reinvented websites.” Well, I don’t own my domain. I rent it from a middle man who potentially rents it from another middle man.
PH: Not being really sure what you own when you own something in the new format, is a problem that I have grappled with professionally for a long time, in the field of digital first sale and what might have used to have been called digital assets, although now I think NFTs have pretty much occupied that space. When you own an ebook, the list of rights that you have and things you are allowed to do have been defined by an industry group. That definition has the force of law. This is an area I think about a lot as it pertains to NFTs. People are, perhaps over-zealously, talking about portable digital media where you can buy an item in one game and then—because it’s an NFT—move it to another game. That perks my ears up, because this is an area where we have been living for, now several decades, with diminished rights over what we had with physical goods.
We no longer basically have the right to resell media that we buy, if we buy it in a digital format instead of a physical format. We no longer really have the unrestricted right to repair our physical devices if they've got software involved, versus previously. And so where our rights have been diminished there, I'm interested in things that will expand them back out. People are saying that the blockchain can enable that. I am not sure, but because I want to see these rights restored to people who buy things this way, I am cautiously optimistic there.
DA: I want to switch topics slightly to talk about the civil liberties that were the foundational principles for EFF. What would you describe as the primary principles of internet liberty, and are they working in Web 2.0?
PH: The answer to that has probably changed over time. There's a sort of viral Tweet that I enjoyed:
Originally, in that founding era, you might say the principle was that we have property rights over our actual computers. But over time that has become the view that the civil rights and civil liberties that we enjoy offline shouldn't go away online. And then I think there's an even more ambitious element which is like, okay, imagining from a blank slate, what rights should people have, and how can we enable that? "Let's get as ambitious as we can about the rights that people should have, and how technology can enable that."
And I think on Web 2.0, or “the web” as we often call it, there is tension. An area that we see a lot of tension is speech moderation. Depending on how narrowly you define Web 2.0, if you include all of Web 1.0, it does seem like it continues to be a force of net freedom and net liberty. But when you look at the stories that make up the techlash of the last year or the last couple of years, those don't feel like real benefits to personal freedom and personal liberty.
DA: Do you think the opposition to stuff that we're terming Web 3.0 comes from the belief that those electronic civil liberties will be further eroded?
PH: Yeah, so I have seen that argument, and I think I understand where that comes from. In the sense that, so again to focus on copyright and digital media, because that's a narrow example where you can really track this: It used to be, say in the '80s and '90s, that you would buy a book or a video cassette or a CD, and you could do anything that wasn't against the law with it. And then, we moved to a system basically where instead of the law precluding a few activities but everything else was fair game, you now have licenses that I think are too restrictive, like I'm not allowed to give you my e-book after I'm done with it. The idea now is that in some ways, having a license to do something is preferable to not having that license, but not requiring the license is preferable to either. I think I can see a colorable argument that moving towards a system where everything is a transaction with two ends and a contract in the middle, could either further entrench or really set us up for a new paradigm of restrictions.
DA: Another flashpoint that comes to mind even within the political left is the Internet Archive. Publishers, advocacy groups and even the National Writers Union, which I am a part of, have taken IA to task for going beyond the allocated number of lending copies. Basically, for the books available on IA you should be able to trace them back to a library and further back to money that has gone to a publisher and money that has gone to a writer in some form. I feel like there are two arguments among labor advocates: if people aren't paying for books, then writers aren't being paid for their labor, which I can agree with. But also, oh, books should be free. All of this should be in the public domain. We should have a library online that doesn't have restrictions on taking stuff out, and knowledge should be free. Otherwise, it's unequally distributed between the rich and the poor.
I am seeing those same contradictions play out again with NFTs. Supporters of artists are rightfully very upset about seeing stolen DeviantArt on OpenSea. But then those same people react with visceral anger to the idea of tokening an ebook. Where that token could then represent some other utility that you wouldn't get out of buying a book for your Kindle. Maybe that token entitles you to go into a digital book club and chat directly with the author. You've spent the same that you would spend on the ebook, and suddenly you have something that actually might have additional value to something you were going to have to license anyway. Anyway, the way I feel about the IA debate is the way I feel about the NFT debate. I don’t outright disagree with anyone but that nuance doesn’t add up to hating web3. It just adds up to curiosity and motivation to find out what’s going to happen.
PH: Yeah, so one thing that I want to get back to, if you're willing, is that question about adding a token that may come with other benefits to the ebook, for example. But first, I want to say something about, that I think maybe sort of unites the Internet Archive example, and yeah, the DeviantArt example. It has to do with copyright, which is like the system of copyright that we have. If you look at its history and you look at how it gets developed. The main law that we've got on the books right now was passed in 1976, and when it came out the register of copyrights called it a pretty good 1950 copyright law. It represented so much compromise, and it reflects industry goals and horse trading and all these things. So what we've got is this huge body of law that is hammered out over the course of decades by representatives of industry, basically, and it's got two really almost completely distinct jobs to do in the public imagination. One of those jobs is an economic one, and it's what you would describe as getting artists paid. Or I mean you said writers, but creatives, you know? Get the people who make stuff, paid. I don't know that there's a better system, but I think we all kind of know that it's a lousy system, in the sense that most artists, most writers, no matter how much you write and no matter how much you create, it's very hard to make a living that way and that's a bummer. That's just a bummer in the world, that we've got this new body of law. It doesn't do a great job of getting people paid. Some people get paid a lot, but those don't appear to be the people who are most creative or whatever. Okay, so it's doing that one thing. Then the other thing that it's doing, ancillary to the payment thing, is what gets called in Europe moral rights; allowing people to control this thing that they've created. I have this memory, this sort of notable memory when I ... 15 years ago or something, I went to go see a fair use case in court. I saw it was a-
DA: As one does.
PH: Yeah, I was in college, too. This is what I did for fun. And J.K. Rowling was testifying, because it was a fair use case having to do with Harry Potter. She got very emotional on the stand. She described these works as her children, and the fair use that she was opposing in this case, she felt like someone was misusing this stuff that she brought into the world. I disagreed with her then. I feel like if I had agreed with her, I would probably be using a different example. But, copyright is tasked in the popular imagination with letting writers be parents in a way, letting them control what happens to their stuff.
DA: To me, and most of the people I've talked to who have some familiarity with Web 3.0, don't feel that this represents the financialization of something that wasn't already financialized, even if that financialization lives within copyright code. Or commercialized if you will, or regulated.
PH: I've worked for a long time with Creative Commons licenses, and with Creative Commons the organization. I've spent a lot of time on their mailing lists and things like that, around people having discussions of what Creative Commons licenses mean. A thing that has always struck me as really interesting there is, one of the kinds of licenses you can have is “noncommercial.” I think the noncommercial license is probably the most misunderstood single word or two in all of Creative Commons licenses. The thing that is so interesting to me about it is that a Creative Commons license is saying by default, you the creator have a bundle of rights. A Creative Commons license says, "I wish to waive these rights under these terms. I want to give away these rights." The noncommercial clause means that I want to give away the rights to do things, except to do things commercially. But what that actually means in practice, the way, the mechanism by which this occurs, it's saying that the user of this license wants to have the sole commercial rights here. And yet, people apply this to things that they want, that they view as fundamentally noncommercial. So they say, "I don't care. I think that this artwork that I made, I don't want it to have a place in commerce." The mechanism by which they do this is they say, "And so I will restrict the commercial rights. I'll be the only one who has the commercial rights." Because you can't actually make the commercial rights go away. You can only say like they exist-
DA: You can only assign them to yourself. You can't assign them to nobody.
PH: Right. And in fact, this comes up with Wikipedia sometimes, where Wikipedia is licensed under a Creative Commons license, and it's not one of the noncommercial ones. As a result, you can sell copies of Wikipedia. This is, to my mind, a sort of purer noncommercial stance of saying, "I am so removed from commerce that I won't even consider whether the downstream uses are commercial or not." But not everyone wants to do that, and the people who are most allergic to commerce end up reserving the commercial rights. And so I think that you have some of that same dynamic going on where people say, "I make my art for reasons that are my own, and introducing commerce is offensive to me." But because of copyright law and because of a bunch of social constructs that predate NFTs by 250 years, you couldn't introduce your art into a noncommercial world, anyway.
DA: I've seen some pretty scaremongering threads. Maybe they aren't scaremongering. I think there's genuinely people who have trained themselves, and maybe with good reason, to jump to the most dystopian application of a new technology. Jokes and memes like, "You wouldn't download a car," could eventually become some sort of blockchain license economy where every violation of the blockchain ownership or the blockchain license would be surveilled even beyond the surveillance that we have now. I remember there were strict consequences for getting caught torrenting on campus wifi, even if you go to an ostensibly liberal college. So I understand why people have gone to the sort of bleakest blockchain case saying that like, "Oh, okay. We don't actually believe people that are saying, 'This is a way to create utility around digital products that are already financialized. We believe this will lead to the increased financialization or tokenization of things that are right now just public goods or free to use for whatever.'" And I don't really know what to say to that, because it's talking about something that hasn't happened yet.
PH: The term for that is “enclosure of the commons.” The thing about enclosure is like by the time it's done, it's not very reversible. It becomes private property. Even if it's 100% innocent, even if people aren't getting rich at the same time, it still means a changing relationship of ourselves to our culture, and that's a pretty sacred relationship that we have. In practice it may be somewhat reversible, but it takes a lot of social and political will that I don't know if we can muster.
DA: Can you think of any example of a Commons that's already been affected by Web 3.0?
PH: Not yet. This is earlier, but you can decide if the analogy applies. Originally samples of records was something that was done very informally and expertly, but it wasn't released on records. It was done in parties in New York, and then it was put on records and people were a little suspicious over it, maybe. And then as hip hop started to get more popular, there were a bunch of lawsuits and these lawsuits are I think sort of a black mark on American jurisprudence. They're based in copyright law, but they’re pretty obviously racially animated. One of the things that went into the question, whether this was a fair use and whether this is something that people should be allowed to do, is if there was already a market for licensing samples. And then in some cases judges even went further and they said, "Well, even if there is no marketplace for licensing samples, if people are allowed to sample without a license, wouldn’t that prevent one from emerging?" The result was a change, pretty dramatically, and you ended up with this thicket of licenses.
So even though I haven't seen one of these happen in Web 3.0, I do understand the mechanism by which we could later say, "Oh, actually that shouldn't have been regulated by the people who held the keys at the moment that we decided to do regulation. But, we can't turn that back now." I don't know that that's going to happen. But I know what it would look like if it did.
DA: Yeah, I think about artists like 24-Carat Black that were sampled frequently but because of the way their contracts were constructed to begin with, didn't get any money from it. I guess the thing that I take issue with is this strain of purity that people should be okay giving things away for free, or they should cut themselves off from certain types of income based on moral reasons that differ from person to person. Going back to your sampling example, DJs sampling live at parties were peeling the stickers off records so that other people couldn’t see the combination of discs they were playing. So the instinct to gatekeep is there, even at the most primitive form of a new art.
Where do you draw the line, and can you find the line just by writing off NFTs as a category? I think that you can't really find the line by just completely writing it off, because people are going to participate anyway. They're just going to participate without you and your moral scruples or your arguments.
PH: Yeah, and I think it would be an understandable but no less mistaken kind of mistake, would be to say, "Well, let's hew as closely as we can to the particular set of compromises that emerged in 20th century copyright law."
DA: In the civil liberties view of the internet, would ownership exist at all?
PH: Answering that question depends a lot on how you’re defining ownership.
DA: How do you define ownership?
PH: It’s obviously contextual. One of the very first Cory Doctorow novels has a currency, a digital currency, but this predates cryptocurrency, called Whuffie, which is reputation-based. And so that's been in the water for a long time. You could imagine a stripped-down version of digital ownership that just basically comes down to association. That's ownership like your DJs peeling the labels off, so they own that in the sense of like they are exclusively or predominantly associated with it. Even from the most techno-libertarian to techno-hippie version of this, you have things that people have control over, right? Your passwords and stuff like that, and that could be ownership.
DA: The idea of ascribing value to people’s reputations–I personally hate that idea. But I would also say, is Twitter not a social reputation platform? Do I have the option NOT to be on LinkedIn as a job seeker? So many of these things that we think we've been exempt from or somehow escaped we've just created in way more sublimated, and I would argue more nefarious, ways.
PH: And more private commercial ways. The requirement that you're on LinkedIn makes someone money, in a way that is nefarious in its own way.
Bucky with the Good Arm @benjancewicz
This palm tree fell over, refused to die, and curved right back up. https://t.co/wuiQ0U0EzMDA: Right, just like the requirement to have a credit score to rent something makes somebody money. In Web 2.0, our identities are not anonymous to the platform, but our transactions are, sort of. We are less anonymous than our behaviors, and I think Web 3.0 reverses that where identity is more private, but behavior is more public, at least transactional behavior. You could argue that it should all be private, but then I guess it comes back to the idea of ownership. If Web 3.0 systems allowed us to claw back at least some of our personal identity data from the digital platforms, even if we are not able to claw back our transactions or monetary life, does that not represent an improvement?
PH: I am reminded of the first thing that I heard that was called Web 3.0, and promised a certain level of personal liberty and emancipation. That was something that turned out to be much smaller than the new Web 3.0, a semantic web where you could imagine much greater decentralization. I do wonder if the thing that will eventually be emancipatory and wrest some of our privacy and anonymity back, is going to be called Web 3.0 no matter what the tech stack is. This is the one that has a lot of attention right now.
DA: Can I ask, do you personally have scruples with Web 3.0 that aren't related to the environment? Web3 is so broad, but I guess NFTs, specifically, to start.
PH: Yeah. I mean I guess I personally approach it as if money weren’t in the background, which is I think hard to do when there's as much money sloshing around as there is. And to the extent that I have qualms, it's largely as an engineer and saying, "What are we using a blockchain for vis-a-vis bits of collectible art, and is a blockchain the right tool for that?" I think the answer in many ways is no, and then you reintroduce the money aspect, which hasn't actually gone away. Okay, so, there's non-engineering reasons why you would do this.
To look at the problem space that I have spent more of my career focused on, of tokens that can be used as authentication for something. I think, "Yeah. It would be cool. It'd be great if an NFT somehow was a thing that allowed you to read an e-book both on your Kindle and on your Nook, and you could just demonstrate ownership of the underlying file." I don't know who owns both a Kindle and a Nook.
DA: A monster?
PH: Yeah
DA: A freak?
PH: But sure, or play a game on your Xbox and Your PS5. I don't think that the engineering problem there is solved by a blockchain. But, it's possible that the social problems or the impediments that are based on industry personality and stuff like that, those could go away if everyone got focused on solving the same problems at the same time. If the thing that got them focusing on solving that problem is blockchain, is NFTs, whatever that means to them, then that's a net win. But it does make me scratch my head as an engineer like, a lot of what we're describing could be done with Web 1.0 technology.
DA: Well, totally. I feel the same way about like, why can I not pay 10 cents to read a fucking New York Times article? I realize that people have been proposing companies that would build this layer for so long. Some of them already exist. So maybe it's stupid to hope that blockchain would do it, but at the same time it's not a question of where does the technology exist? It's, where does the momentum exist?
PH: Yeah.
DA: And I understand that to somebody with a hammer, everything looks like a nail. But what if the nail is the opportunity? What tool would you then build to take advantage of that? Is the blockchain the right tool, to echo your point? Maybe not, but there are cases in which the best tool might be the one that exists, if it has momentum behind it and isn't setting up some sort of diabolical trolley problem.
PH: The paradox here is like, we've got so many eyes on blockchain stuff that we might actually get impressive stabs at solving problems that have hitherto seemed intractable, because of all the attention. But on the other hand, just from a Bayesian inference perspective, you aren’t likely to get a real lasting solution from the new technology. It is much more likely to come from something boring.