Neelie Kroes is becoming one of the open Internet’s most influential supporters.

Kroes is Vice President of the European Commission and is responsible for its “digital agenda.” At the Forum d’Avignon I was at (see here and here) she was just about the only person in a positon of power — economic or regulatory — to suggest that the Internet is actually a good thing for culture, and that we need new ways to think about copyright and distribution. Yesterday she gave a speech at the World Wide Web Conference in Lyon in which she called for new thinking to support an open Internet. Most importantly, she explicitly recognized that openness is indeed the property from which the rest of the Net’s value springs.

That a leader of the EC responsible for the “digital agenda” understands this shouldn’t be news. But it is. She even cites Yochai Benkler. Go Neelie!

Her talk begins by nailing its main point:

The best thing about the Internet is that it is open. Indeed it’s built on the idea that every device can talk to every other, using a common, open language. That’s what explains its seemingly endless growth.

Exactly right! Thank you, I’ll be here all week, drive safe, and God bless.

She goes on to explain the many benefits openness brings: “…choice and competition; innovation and opportunity; freedom and democratic accountability.” “Look at what we could do if we opened up our public sectors and put their data online.” She touts open standards. She points to political benefits: “And just look at what openness can do for freedom of speech. The Internet gives a voice to the powerless, and holds the powerful to account.”

Then she turns to the factors that impede openness:

Sometimes the problem is ancient, pre-digital rules that we need to cut back or make more flexible. Other times, openness actually flows from strengthening regulation.

She goes on to say that sometimes it’s about changing a “mindset,” not changing the rules. She says that we need an environment were different models are available and can compete. For example, some people want open discussions and some want moderated forums. We should have all types so people can choose. Likewise, we should have many different business models. People who want to be compensated monetarily for their deserve to be, although many are happy to give away what they’ve created. She says:

Look at the complicating licensing systems for copyrighted material here in Europe. These guarantee that Europeans miss out on great content, they discourage business innovation, and they fail to serve the creative people in whose name they were established.

Woohoo!

After nodding to the need for security and privacy, she gets down to the infrastructure level:

…open competition, brought by the EU, has delivered for Europe. It offers consumers better deals and new, tailored services; market players new opportunities; and potential investors legal certainty.

She states her firm commitment to net neutrality. She is fine with having many market choices, including for cheaper plans that provide limited bandwidth, or access designed for specialized preferences. But, she says, there must always be truly open, neutral access, and she points to the BEREC study due in May that should tell us whether in Europe truly open access is being offered to everyone as an option.

Great speech, especially from a person in her position.

So, let me tell you my one concern. Kroes’ idea of openness means that the Net ecosystem should support the option for closed systems for those who want them: It needs to support copyright and it needs to support offerings from access providers that limit access. In theory there’s nothing wrong with that. The problem comes when you try to engineer an open system to support closed options. So, even the most crazed copyright supporter (let’s just call him, oh I don’t know, “Sarkozy”) is happy to let people give away their own content if they should be nutty enough to want to do so. But to support the “equal and opposite” option of being able to sell content, Sarkozy wants to rejigger the entire system to prevent “piracy.” If you want to offer the closed option with sufficient rigor to prevent all violations, the system would need to become closed. Kroes is certainly not advocating that closure, but the piece I feel is missing from her talk is the recognition that the value of openness surpasses the value that would come from a system engineered to so scrupulously protect IP. We have to accept some degree of risk for IP in order to have the openness that brings us the values Kroes is so eloquent about.

Likewise, I have no problem with access providers offering plans with data caps or that throttle bandwidth (assuming they’re transparent about it); that does not violate my idea of net neutrality. But there are conceivable plans for “specialist user needs” (as Kroes calls them) that would be discriminatory: A plan that gives priority to the delivery of movies (for example) would give those movie bits priority over the non-movie bits that other users of the Net care about. Personally, I think the best protection for the open Internet is structural separation: access providers sell you access — including tiered services — but are not allowed to sell either content or services that discriminate among bits. I don’t know where Kroes stands on this, but again I would have preferred a clear statement about it.

But now I’m just being greedy. Neelie Kroes is an Internet champion at time when we desperately need one.

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Musician and Berkman Fellow Erin McKeown has written a wonderful post expressing her ambivalence about copyright.

Her heart and her brain are on the side of copyreasonableness, and thus she reacts strongly against the insane copyright totalitarianism that has come to be taken as obvious, normal, and even righteous.

But then this happened: In 2003, she wrote and recorded Slung-Ho with some success.

In 2008, it was used in a commercial shown in the Czech Republic. Last year, a Czech singer issued this song. See it here because Sony, having its sense or irony removed in the operation that removed its heart and common sense, won’t let the video be embedded. Proof:

Let’s stipulate that it’s a rip-off: not a mash-up, not an homage, not an inspired-by. It’s a commercial rip-off intended to make money off the another’s creative work. And the song has done very well commercially.

Erin has mixed feelings, which she expresses honestly. That’s what makes her post so interesting.

And challenging.

I think our current copyright system is insanely inadequate for the new ecology, and that it has the opposite effect that its best-spirited defenders want it to have: the current copyright laws (and mindset) are impeding the greatest cultural flowering in our history, and if those copyright laws are taken to their proposed maximum, they will kill culture dead.

And yet. I write books that are copyrighted. I write them in part to make a living. If you published my book without my permission under your name, I’d be pissed off. If you then sold them at half my publisher’s price on Amazon, my publisher would sue you and I’d happily testify against you. And I wouldn’t feel like a hypocrite. Well, I would (just as Erin feels ambivalent), but I’d remind myself that in this case, that niggling fear of hypocrisy is evidence t hat I’ve fallen into the copyright totalitarians’ trap.

The trap uses the fact that the line between cultural sharing and ripping someone off is blurry. Was George Harrison really ripping off The Chiffon’s in My Sweet Lord? For me, that’s a really blurry line, but ultimately I was sorry that he lost the case, in part because the song was simpler, in part because it was so famous a reference that I thought it was a form of homage, and in part because when in doubt we should allow cultural re-mixing to avoid cultural chilling effects. But the fact that the line is blurry does not mean that all cases are blurry. And Erin’s case and my hypothetical case are to me clear instances where someone is stealing the rewards that should accrue to the creator. I don’t think Erin is being hypocritical in the least: supporting serious copyright reform does not require one to give up all copyright claims. We think otherwise because the copyright totalitarians have succeeded in making us think that the alternative to the current insanity is to have absolutely no protection for creators. But fuzzy lines are still lines. (Well, ok, maybe they’re actually areas, not lines. But that’s neither here nor there.)

If anything, Erin’s willingness to protect her works from an egregious ripoff should make her an even stronger voice in the movement to protect sharing from the current predatory copyright laws.

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To quote Cory Doctorow at BoingBoing: “Stop ACTA & TPP: Tell your country’s officials: NEVER use secretive trade agreements to meddle with the Internet. Our freedoms depend on it!” ACTA (Anti-counterfeiting Trade Agreement) is a global trade agreement that’s like SOPA except that it’s secret and does not require legislative approval. TPP (Trans-Pacific Partnership Agreement) is a secret 9-country deal (including the US) that is even more restrictive than ACTA.

Today is a day of international protest. Please consider registering your concern via this form from Fight For the Future.

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[live-blogged yesterday] I’ve come in 30 minutes late (Sorry! I had it marked wrong on my schedule) to a panel at the Kennedy School about politics and the Net. The panel is outstanding: Susan Crawford, Micah Sifry, Nicco Mele, Alexis Ohanian [reddit] and Elaine Kamarck, moderated by Alex Jones.

As I enter, Susan is saying that SOPA was put forward to make PIPA [Senate version] look reasonable, but it obviously backfired. But, she warns, the type of concerted effort that defeated SOPA is special and rare; we can’t count on it happening again.

Nicco says that Google has doubled its lobbying budget, spending $10M this past year. But it hasn’t made much of a dent against the tight relationships among the entertainment industry lobbyists and Congress. “This is not the end of this issue,” he says, referring to the battle over Hollywood content. “It’s more like a battle in the middle of the opening third.” He adds, “The power of the grassroots to shape and drive the debate…was a shock to the insular world inside the Beltway.”

Alex: Suppose there had been the outcry but not the going dark? Was it going dark that did it?

Nicco: It was an expression of the intensity of the situation. It might have had the same outcome. Google didn’t go dark and drove a huge amount of traffic to anti-SOPA sites.

Susan: Google joined a parade smaller sites like Reddit.com had started.

Alex: Is this a watershed moment?

Elaine: No. Sometimes DC gets things wrong. E.g., a Medicare bill was repealed after 16 months because the seniors went nuts about it. This was pre-Internet. “Old ladies were throwing rotten eggs at Dan Rostenkowski.” Also, in 2006 there were local protests against a bipartisan immigration reform law. SOPA was a perfect example of a bunch of old guys — Chris Dodd et al. — not understanding that they were playing with fire. They didn’t take into account the intensity the Net citizens felt. There’s nothing fundamentally different from what we’ve seen before: Sometimes the folks in Washington just don’t get it.

Alex: We tried to get people on the other side to join us, but I’ll take their side. An op-ed yesterday said that the anti-SOPA digital tsunami was an abuse of democracy.

Micah: That was a frustrating op-ed because he doesn’t imagine that the citizens who were linking and faxing had agency. He assumes they were all duped by Google etc. Citizens can inform themselves, make up their minds, and take action. That said, I think it’s worth noting that some of these companies have immense power. It’s fair to ask how far can they responsibly use that power? I’d argue that most of these companies are in a more responsive relationship to their users than much of old media, especially not Hollywood and the recording industry. They are far more likely to listen to their customers and respond to them. Also, anyone who raises the issue of abusive media power needs to be asked how Fox News helped create the Tea Party Movement, cheerleading people to go to the first rallies. The media coverage on Fox took place before the manifestation of what it was “covering.” For me the fact that the anti-SOPA movement was a civic-commercial hybrid is fascinating.

Alex: Truman ordered the Army to bust up a train strike. Google and the Web overall have become the nervous system of the world. At what point does the power of a privately owned nervous system becomes so great that its even considering withholding services becomes inappropriate?

Alexis: The op-ed was malarkey. All sites are made equal, so if Wikipedia closed down for a week, there would be a new instance of it almost immediately. Likewise if the search engines went down. It is such a frictionless market.

Susan: Legally, infrastructure like transportation and physical access lines is different from the content. When it comes to train line or someone providing cable access to your home, there are extraordinarily high start-up costs. They can be natural monopolies since it may not make sense to have more than one. Google is not a natural monopoly.

Elaine: Laying a transatlantic cable is a big, expensive undertaking. Those infrastructure companies are governed like utilities. The Net access providers claim that they should be able to charge Google more for carrying their content, and that battle will play out over the next decade. So, there are clashes, but the SOPA battle isn’t like that. The US federal govt is not prepared to think about governing the Net. You can see this in its approach to cybersecurity. There’s a nasty cycle: cybercrime is one of those crimes you can pretty much guarantee you’re never going to be caught at. We’re not ready as a country to think about regulating the Net to prevent it. The MPAA and RIAA are really not ready to deal with this. They’re playing an old game. They and a lot of people in Washington don’t understand the issues.

Alex: What are the issues where the govt ought to be thinking about regulation?

Nicco: I don’t think we have a handle on these issues yet. Our leaders lack a fundamental understanding. One way to deal with this would be to introduce a mandatory retirement age for Congress. [it's a joke, sort of.] They’re fundamentally out of touch with how most Americans are living their lives.

Alex: How seriously should we take Anonymous? The nihilistic impulse and incredible skill?

Micah: It’s hard to generalize about Anonymous. It’s a shape shifter. I asked someone researching them if she could assure me that they’re not the Russian Mafia. She said she couldn’t; you just don’t know. And it’s not just Anonymous: the Arabs and Israelis are going after each other. We should also keep in mind that on sites like Reddit.com and CraigsList.com you get daily acts of altruism.

Susan: User empowerment/agency is almost always the right reaction to bad acts and bad speech.

Alex: How about identifying malefactors?

Micah: It’s a good thing you can’t. If we reengineered the Net so you could, the people who would be hunted down would mainly by dissidents. It’s a double-sided sword.

Elaine: You’ve expressed the Zeitgeist of the Net. At some point, criminals will get smarter and will steal billions of dollars from people on Facebook. There’s a crisis point for the Net coming. It won’t be shut down, but it will fundamentally change. It’s not inconceivable that in 20 yrs will have a different Net because people will demand it because someone will have stolen thousands of dollars from us all, or they will withdraw from the one Net and instead will form cloistered nets.

Susan: I agree. There will be a meltdown and people will react with fear. We need to train our reps to understand what the Net is so that they can have an intelligent response.

Alexis: People are afraid of hackers. But the problem is that security is terrible. Banks need to take online security much more seriously.

Alex: Has Wikileaks changed the way people share info?

Susan: The State Dept. no longer shares cables with the Defense Dept.

Alexis: The weak point is always human.

Micah: When I hear you talking about criminals attacking the banks, I think the criminals are running the banks. We’re moving away from trust in centralized institutions and more trust in ourselves. I mentioned Kickstarter.com at the start of this panel [missed it!], and it’s taking off to the extent that in Detroit they’re starting to refer to it as a grassroots WPA. Nicco and I think that the anti-SOPA moment was different because it wasn’t just a shout, but it was when a large community began to realize its own power to shift how things work.

Elaine: Seniors aren’t an interest group?

Micah: Yes, but they worked through a single lobbying group.

Susan: Now they have network.

Alex: But you said we can’t do this too many times…

Suan: But now that the Internet community can see itself, it is forming new associations and networks…

Alex: Hollywood doesn’t seem interested in working together…

Alexis: Hollywood should see the Net as another channel to make money. 10% of the entries at Sundance this year were funded by fans via Kickstarter.

Alex: The anti-SOPA group spanned politics. Matt Drudge was part of it. Are either the Dems or the Repubs better at this?

Alexis: It’s become a political issue.

[And just under the wire, Micah gets in a Google-Santorum joke.]

Q: The Net can be brought down any time…
Susan: It would be extremely difficult to bring it down. The root servers are echoed all over the world. The real risk is that physical cables between companies can be cut. We have too few Internet providers. The great thing about the Net is that it works just well enough — a best-effort network. The NSA has a tremendous amount of info about the threats and attacks. That info should be shared with the operators of the networks and banks in ways that are safe for them so they can cooperate. But you don’t want to burn the village to save it.

Q: What are the lessons from SOPA for citizens and for smaller sites?
Alexis: It’s easy to put up a one-off site to help organize and get attention. That just takes some html and a good idea.
Nicco: How much do you think of Reddit as a political force?
Alexis: It’s not. The people there are. The SOPA protest bubbled up from subreddits. At that point it got the attention of the staff. For us, it was 12 hours of lost revenues, but traffic was up the next day. We built Reddit as a meritocracy. We strive to make sure that if something comes to the front page, it’s genuinely popular.

Nicco: The point of the Constitution is to regulate lunatic populism.

Elaine: No, you take populism into account when governing.

Nicco: Someday Reddit’s mgt may be faced with a decision about going against the community’s preferences.

Alex: The huge anti-SOPA outpouring was only about 10M, which is less than a plebiscite.

Elaine: This is an issue with no clear answer. They heard the outcry, and the reps who had signed on without reading the bill pulled back. This happens not just with Net issues. E.g., Cap and Trade.

Q: [me] Is there a Net constituency, Net values, and does the Net shape political consciousness?
Micah: We’re seeing a change in consciousness: a willingness to dig and share. The Net is conducive to those values, although not everyone who uses it will share those values. But many of these sites have constituencies. This is a sharing economy. The Net is enabling something that was always there in American culture: barn raisings, rent sharing. And some of the things you can do are organically natural: I don’t think you can convince 75M American teens that they’re all thieves. And they’re going to be voters. They’re going to ask what sorts of businesses they can build on top of that sharing.

Q: Alexis, how have you been tweeting during this panel?
A: Katrina has been tweeting in my name. That’s trust!

Q: Tim Wu has made a compelling argument that historically information empires start out open and then become monopolies. Google is young and it’s already finishing our sentences [auto-complete], which is a powerful way of shaping consciousness. The more people are searching, the easier it is to improve your service, so there are economies of scale in search. Hence, monopolies could emerge that have serious barriers to entry.
Nicco: The history of personal computers + connectivity is about empowering individuals and making it easier for small things to destroy big things. I’m not convinced that Google’s advantage is large enough to make it a monopoly.
Micah: I worry that Google can manipulate search results in undisclosed ways. If they favor results that favor their own products, which they’re starting to do now, they’re taking a risk. Their value is that they give us the best results, and if they don’t do that, other sites may get traction. And if they start favoring their own products they can be accused of antitrust violations. They have immense power and I don’t see how to get them to be more transparent without giving up trade secrets.
Alexis: We’re allies with Google as a matter of convenience. If they started lobbying in DC against Net interests, everyone would abandon them. And we think when it comes to building products, we could beat ‘em.

Q: Google is becoming a content producer. Might they switch to pro-SOPA?
Alexis: I don’t know, but if they did, we’d line up against them.

Q: People in this room could switch search engines, but for many people, it’d be harder.
Susan: There’s something about the Google logo that’s like the clown in a horror movie. They haven’t broadened their model beyond targeting ads. Antitrust authorities look at Google very hard. The FTC and DoJ are watching.

Q: Why didn’t Facebook protest SOPA?
Micah: FB is one of the more serious monsters. They signed onto some of the letters but there was no serious activity by the leaders. They want to get into China and don’t want the Chinese govt to think they’re a platform for dissension. Interpret all their actions in that context.
Susa: They see themselves like a media property. They’re the ESPN of the network. Watch FB’s relationship with the carriers. They’re going to want special treatment so that FB becomes the Internet for you. AOL tried it and Americans loved it.

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(Hat tip to Chris Lydon.)

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Here’s an amazing video from StooTV that shows Raiders of the Lost Ark paired with identical shots from 30 different adventure movies made between 1919 and 1973. Yup, that’s how culture works…at least if we let it.

(via metafilter)

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Mathew Ingram has a provocative post at Gigaom defending HuffingtonPost and its ilk from the charge that they over-aggregate news to the point of thievery. I’m not completely convinced by Mathew’s argument, but that’s because I’m not completely convinced by any argument about this.

It’s a very confusing issue if you think of it from the point of view of who owns what. So, take the best of cases, in which HuffPo aggregates from several sources and attributes the reportage appropriately. It’s important to take a best case since we’ll all agree that if HuffPo lifts an article en toto without attribution, it’s simple plagiarism. But that doesn’t tell us if the best cases are also plagiarisms. To make it juicier, assume that in one of these best cases, HuffPo relies heavily on one particular source article. It’s still not a slam dunk case of theft because in this example HuffPo is doing what we teach every school child to do: If you use a source, attribute it.

But, HuffPo isn’t a schoolchild. It’s a business. It’s making money from those aggregations. Ok, but we are fine in general with people selling works that aggregate and attribute. Non-fiction publishing houses that routinely sell books that have lots of footnotes are not thieves. And, as Mathew points out, HuffPo (in its best cases) is adding value to the sources it aggregates.

But, HuffPo’s policy even in its best case can enable it to serve as a substitute for the newspapers it’s aggregating. It thus may be harming the sources its using.

And here we get to what I think is the most important question. If you think about the issue in terms of theft, you’re thrown into a moral morass where the metaphors don’t work reliably. Worse, you may well mix in legal considerations that are not only hard to apply, but that we may not want to apply given the new-ness (itself arguable) of the situation.

But, I find that I am somewhat less conflicted about this if I think about it terms of what direction we’d like to nudge our world. For example, when it comes to copyright I find it helpful to keep in mind that a world full of music and musicians is better than a world in which music is rationed. When it comes to news aggregation, many of us will agree that a world in which news is aggregated and linked widely through the ecosystem is better than one in which you—yes, you, since a rule against HuffPo aggregating sources wouldn’t apply just to HuffPo— have to refrain from citing a source for fear that you’ll cross some arbitrary limit. We are a healthier society if we are aggregating, re-aggregating, contextualizing, re-using, evaluating, and linking to as many sources as we want.

Now, beginning by thinking where we want the world to be —which, by the way, is what this country’s Founders did when they put copyright into the Constitution in the first place: “to promote the progress of science and useful arts”—is useful but limited, because to get the desired situation in which we can aggregate with abandon, we need the original journalistic sources to survive. If HuffPo and its ilk genuinely are substituting for newspapers economically, then it seems we can’t get to where we want without limiting the right to aggregate.

And that’s why I’m conflicted. I don’t believe that even if all rights to aggregate were removed (which no one is proposing), newspapers would bounce back. At this point, I’d guess that the Net generation is primarily interested in news mainly insofar as its woven together and woven into the larger fabric. Traditional reportage is becoming valued more as an ingredient than a finished product. It’s the aggregators—the HuffingtonPosts of the world, but also the millions of bloggers, tweeters and retweeters, Facebook likers and Google plus-ers, redditors and slashdotters, BoingBoings and Ars Technicas— who are spreading the news by adding value to it. News now only moves if we’re interested enough in it to pass it along. So, I don’t know how to solve journalism’s deep problems with its business models, but I can’t imagine that limiting the circulation of ideas will help, since in this case, the circulatory flow is what’s keeping the heart beating.

[A few minutes later] Mathew has also posted what reads like a companion piece, about how Amazon’s Kindle Singles are supporting journalism.

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Jimmy Wales has proposed that Wikipedia might black out its English-language pages for a short period to register opposition to the SOPA law that would allow the US government to shut down access to sites that provide access to material that infringes copyright. These shutdowns would occur without the need for any judicial procedure, without notice, and without appeal.

I think Jimmy’s idea is great and that all sites that could be affected by SOPA — which is to say any site — ought to join in. Just name the date and time, and many of us would turn out our sites’ lights.

[Minutes later: Through a failure in my command of in-page searching, I missed Cory Doctorow's proposing exactly this on BoingBoing. Go Jimmy! Go Cory!]

(Here’s Rebecca MacKinnon’s op-ed on SOPA and its Senate version, which together would constitute a Great Firewall of America, as she says. [A couple of hours later: Rebecca and Ivan Sigal just posted a terrific op-ed on the topic at CNN.com)

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Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, has become a lonely voice trying to protect the Net’s most basic values. At a cultural ministers’ meeting held in Avignon last month, she had the temerity to suggest that the copyright system is not working to protect the rights of creators or to spread culture. Now she is suggesting that the Net can actually help the forces of freedom and democracy around the world. This new speech not only makes the case, it seems to have paid attention to the debate over previous claims that the Net is overall a positive political force, not merely a neutral technology, and not primarily a tool of oppression.

Neelie gave her full speech in Avignon in a closed door meeting, but she presented a version of it the next day at the Forum d’Avignon, which I was at and live-blogged. At the time, it struck me as certainly better than the copyright totalitarianism espoused by President Sarkozy, the values of which were mirrored by most of the participants in the Forum. But I thought Neelie was proposing nothing more interesting than adjusting copyright law so that more money went into the hands of more artists, rather than addressing the imbalance between the rights of creators and of the public. But I’ve been convinced by European friends, particularly Juan Carlos de Martin that I’m failing to hear her remarks in the right European context.

So, go Commissioner Kroes, go!

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Trurl at Metafilter posts about Scarlatti’s piano sonatas, a composer I haven’t spent a lot of time with, probably because of some bad, cheapo LPs I bought randomly when I was in college. But Trurl’s got some recommendations and some links to YouTube performances. The comments to the post have more discussion, more links, discussion back and forth about Bach versus Scarlatti, questions about musical notation, and so forth.

So, I’ve spent far more time this morning learning about Scarlatti, poking around sites, listening to his music, than I had intended or even imagined. Indeed, I had intended to spend zero time doing any of those things. Scarlatti happened to me this morning. Thank you, Internet!

As we contemplate protecting the rights of artists and enriching publishers, we ought to be thinking first: Yes, but how do we let more of that happen?

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