12. Conclusion: The Stakes of Information Law and Policy

Download the full chapter here

wow goldYears ago a farmer owned land along the Atlantic seacoast. He constantly

advertised for hired hands. Most people were reluctant to work on farms along the Atlantic. They dreaded the awful storms

that raged across the Atlantic, wreaking havoc on the buildings and crops. As the farmer interviewed applicants for the job,

he received a steady stream of refusals. Finally, a short, thin man, well past middle age, approached the farmer. "Are you a

good farmhand?" the farmer asked him. "Well, I can sleep when the wind blows," answered the little man. Although puzzled by

this answer, the farmer, desperate for help, hired him. The little man worked well around the farm, busy from dawn to dusk,

and the farmer felt satisfied with the man's work wow gold. Then one night the

wind howled loudly in from offshore. Jumping out of bed, the farmer grabbed a lantern and rushed next door to the hired

hand's sleeping quarters. He shook the little man and yelled, "Get up! A storm is coming! Tie things down before they blow

away!" The little man rolled over in bed and said firmly, "No sir. I told you, I can sleep when the wind blows." Enraged by

the response, the farmer was tempted to fire him on the spot. Instead, he hurried outside to prepare for the storm. To his

amazement, he discovered that all of the haystacks had been covered with tarpaulins. The cows were in the barn, the chickens

were in the coops, and the doors were barred. The shutters were tightly secured. Everything was tied down. Nothing could blow

awaywow goldThe farmer then understood what his hired hand meant, so he

returned to his bed to also sleep while the wind blew. MORAL: When you're prepared, spiritually, mentally, and physically,

you have nothing to fear. Can you sleep when the wind blows through your life? The hired hand in the story was able to sleep

because he had secured the farm against the storm.

Case Studies

Counter-examples

wow goldYears ago a farmer owned land along the Atlantic seacoast. He constantly

advertised for hired hands. Most people were reluctant to work on farms along the Atlantic. They dreaded the awful storms

that raged across the Atlantic, wreaking havoc on the buildings and crops. As the farmer interviewed applicants for the job,

he received a steady stream of refusals. Finally, a short, thin man, well past middle age, approached the farmer. "Are you a

good farmhand?" the farmer asked him. "Well, I can sleep when the wind blows," answered the little man. Although puzzled by

this answer, the farmer, desperate for help, hired him. The little man worked well around the farm, busy from dawn to dusk,

and the farmer felt satisfied with the man's work wow gold. Then one night the

wind howled loudly in from offshore. Jumping out of bed, the farmer grabbed a lantern and rushed next door to the hired

hand's sleeping quarters. He shook the little man and yelled, "Get up! A storm is coming! Tie things down before they blow

away!" The little man rolled over in bed and said firmly, "No sir. I told you, I can sleep when the wind blows." Enraged by

the response, the farmer was tempted to fire him on the spot. Instead, he hurried outside to prepare for the storm. To his

amazement, he discovered that all of the haystacks had been covered with tarpaulins. The cows were in the barn, the chickens

were in the coops, and the doors were barred. The shutters were tightly secured. Everything was tied down. Nothing could blow

awaywow goldThe farmer then understood what his hired hand meant, so he

returned to his bed to also sleep while the wind blew. MORAL: When you're prepared, spiritually, mentally, and physically,

you have nothing to fear. Can you sleep when the wind blows through your life? The hired hand in the story was able to sleep

because he had secured the farm against the storm.

Key Concepts

One way of understanding this work, and particularly this chapter, is to realize that Benkler has put into print/html/xml/pdf the answer to the age-old question: What’s in it for me? “It” being the Internet and the information law and policy that it arguably requires to sustain itself and thrive.

Although Benkler often characterizes the nonmarket, nonproprietary (NMNP) models as determining what serves the greater good and what is most effective for the most people, he is actually proving that NMNP models provide more satisfactory answers to more people. This can be understood by re-characterizing each of Benkler’s four economic observations.

“First, the baseline conception that proprietary strategies are dominant in our information production system is overstated.”

The point can be reframed as: The answer to “what’s in it for me?” does not necessarily involve the corollary question of “what’s NOT in it for you?” Market-based, proprietary models (MBPMs) assume that the only way to answer the question and give an incentive to create is to take rights away from others through exclusivity by way of trademark, patent, and copyright protections. Benkler counters this assumption by pointing out the fact that education, the arts, the sciences, and theological and political discourses have thrived on the NMNP model. The incentive to create remains without the exclusivity of the MBPM. Our information production system is actually dominated by strategies that can figure out that what’s in it for you is different from what’s in it for me and can give us each what we desire.

“The second economic point is that these expansions of rights operate, as a practical matter, as a tax on nonproprietary models of production in favor of the proprietary models.”

One problem with the MBPM is that it only satisfactorily answers the “what’s in it for me” for the content owners and providers. For the non-owners or non-providers, the MBPM’s answer is: You get to see/hear the content on our terms. Therefore, if you wish to employ NMNP models that necessarily involve “property” of the content owners/providers, you must either pay the appropriate licensing fees or be prepared for costly litigation. The price for the end-user also increases because these fees or litigation costs are partially or completely passed through to them. In addition, the MBPM also costs the owners/providers in the form of attorney fees for prosecution, registration, and litigation. Everyone ends up paying more but the content owners/providers are the only ones who may end up making more.¹ Again, this comes from the MBPM fear that what’s in it for you will involve less for me.

“The third economic observation is that the basic technologies of information processing, storage, and communication have made nonproprietary models more attractive and effective than was ever before possible.”

In other words, basic technologies have made social reciprocity, redistribution, and sharing possible on a larger scale. These technologies have turned the belief into a reality; that what’s in it for me can benefit you and what’s in it for you can also benefit me. For example, if I want to clean up trash by the Charles River but I will not do so unless 100 other people help me, I can post my desire on http://www.pledgebank.com and wait for others to sign up.² In the networked information environment of the NMNP model, I can use a website like Pledgebank to achieve this goal and surpass it with little effort on my part. This is much more attractive and effective than the MBPM which relies on high initial capital investments that restrict freedom of action. Without the minimal effort required by the NMNP model, I may never have acted on my desire to clean up along Storrow Drive and neither would have my fellow pledgors. One reason for this is the recyclable nature of products in the technological NMNP atmosphere. One website can service many and be revised almost infinitely. In the MBPM, someone has to be able to say “it’s mine” and therefore the recyclability is hindered or nonexistent.

“The fourth and final economic observation describes and analyzes the rise of peer production. This cluster of phenomena, from free and open-source software to Wikipedia and SETI@Home, presents a stark challenge to conventional thinking about the economics of information production.”

Peer production changes the question from what’s in it for me to the better question: "What’s in it for us?" The NMNP model allows a more expansive and inclusive “we.” Technology has removed the high capital investment costs and allowed this expansion of “producers.” Wikipedia and its kin prove that we can create useful information and better society and each other without the exclusivity that drives the MBPM. All that it takes is a realization of the two concepts ripe within this work:

• What’s in it for me does not necessarily involve the corollary question of what’s NOT in it for you, and
• The ultimate goal is to become part of the “we,” asking and answering the better question of “What’s in it for us?”

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¹Except, of course, for the IP lawyers whose livelihoods are, in many ways, based on the MBPM. They are the tax collectors in this scenario.

²Pledgebank was recently mentioned by Professor Jonathan Zittrain in his April 25, 2006 inaugural speech, Internet Governance and Regulation: The Future of the Internet - and How to Stop It, available online at http://webcast.oii.ox.ac.uk/.