An Online Hypothetical: A Published Public Domain

An Online Hypothetical: A Published Public Domain[1]

Creative commons (cc) licenses help defend individual pieces in the public domain from private misappropriation. However, it is not clear how best to stake out or delimit the defensible boundaries of an online global public domain as a whole. There are important suggestions--such as a monthly blanket download license outlined in the final chapter of William Fisher's Promises to Keep--arising as to how to shore up and marshal about the immense value of shared creative work in ways that account for the economic value of network effects. The seven-step thought below may not yet be important: but I'd like to offer it as an early thought toward such a solution in which profit follows cultural value (and not the other way around) and humans reward creative participation, not possession.

A: (Phase 1: Index Creation) Create a index repository of creative commons work[2]—a published public domain—and invite people to commit[3] their creative work to it. Search functions in the index allow contributors to find and use[4] other indexed material simply by linking to both the work and its contributor(s). It’s Google’s tools with the ownership structure of an opt-in, open trust that belongs to no one; a public domain whose resources are actually accessible and public.

B: Tag[5] and link every work to both contributing and resulting sources; display that information publicly, much as a scholarly article has citations (that in this case are also links). Contributors build reputation[6] as their work is used. A reputation economy—built on searchable, indexed public domain work and contributor genealogies—results.

C: (Phase 2: Shifting Value from Private to Public) Calculate and publish the value of all the presently indexed work with algorithms built to account for network effects.[7] That value—the sum total of all indexed work to every contributor—should quickly become immense.

D: When private hands misappropriate the work, public domain lawyers sue them—on behalf of the shareholders trust—for some reasonable proportion[8] of the network effects damages[9] done to the published value of the commons, plus court fees.

E: The public domain lawyers keep the court fees.[10] A lottery[11] distributes damages awards to public domain shareholders: i.e., contributors make money as work is protected in court.[12]

F: At some point, corporations[13] heavy in copyright liability realize they can make more money by defending their resources in a public domain and by increasing their public relations (i.e., the private shadow of a reputation economy) than as a private bundle of sticks.

G: A public production culture evolves where people (1) collaborate on a product, (2) post, index, and distribute the intellectual resource online, publicly, and for free (as in beer). Then, those contributors—as determined by the attribution index—can either (3a) have first rights to produce the material products themselves for private profit; (3b) sell the rights to the production of material goods to already existing producers; or perhaps best of all, (3c) open the resource to any producer contract with the condition that a certain percentage of profits be returned—by lottery—to the public domain.

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[1] This idea kernel sprung from the alchemy of reading Jorge Luis Borges (cf. index, lottery), William Fisher, and Kembrew McLeod late this summer. Credit them for anything good. Thanks to Tim Wu for suggesting Shavell and Ypersele’s article Rewards versus Intellectual Property Rights. I look forward to discovering more with help.

[2] Shareholders own the index as some sort of trust or multi-user contract: that contract is also a creative commons license and stipulates shareholders cannot privatize their ownership.

[3] Shareholders need to commit (by contract?) some specified portion of the work—including past work that is not currently licensed and future work—to the commons index. How exclusive should that commitment be?

[4] As is currently the cc case, shareholders’ access would be limited by conditions the contributor sets.

[5] The tag-link structure functions like genetic code: tags are directly imbedded into each linkable, usable work, so that new pieces of collaborative work automatically express their specific tag genealogy.

[6] Should there be a (A) reputation score or (B) not? If I use your work to build my work, you can find that out as well as possibly (A) have some reputation gauge be credited for my use. In fact, when a third party in turn uses my work, your reputation score could also be credited proportionally as well. This score/index reappears as a central mechanism in step 7. (B) Or, there need not be a “reputation score” necessarily. Genealogies of open use patterns may alone facilitate and streamline person-to-person collaboration.

[7] Total value calculations could be hard: perhaps the value of work could be derived from comparison to private market equivalents, multiplied by the number of public domain users; perhaps from e-Bay or auction equivalents; and when equivalents are absent—as would often be the case, since a public domain should create new products--perhaps from a new pricing structure, where the basic unit carries a very minimal cost affordable to all contributors—regardless their country’s economics—(i.e., 2 cents an article or song) or, as in William Fisher’s work, where total value calculations is entirely a function of the potential revenue of private fees from monthly download licenses.

[8] “Reasonable proportion” could be calculated by previous use histories of the works. If it’s used, it’s valuable.

[9] For example: one $1 song stolen from the public into private, for-profit production costs the public domain $1 x total number of contributors, plus the profit gained by private actors, plus the public domain court fees. It is interesting to note that—because of the network effect—this total value would quickly dwarf even the sum total of all private capital. The “excess capacity” (cf. Benkler) not accounted for in private economy is mammoth, not marginal: the public character of culture must defy private accounting schemes.

[10] Smart lawyers need incentives to work for the public domain as well; otherwise, the pecuniary-minded tend toward the side that does not share. The idea is to let lawyers make money protecting the public.

[11] Three notes on the lottery follow: (A) how to supervise it once in place, (B) different ways it could work, (C) what logic to avoid in building it (i.e., private profit), (D) what logic to encourage in building it (i.e., random profit).

A. The lottery system is locked open-source. The distribution process is subjected to external, third-party watchdog groups whose self-interest it is to find flaws and abuses.

B. How should it work? 100 random shareholder receive equal parts of the damages; a weighting system which favors valuable work contributors; every shareholder receives two cents; or, my favorite, a combination: each contributors starts with a minimal chance at reward, plus use added.

C. A reputation weighting ala Pagerank may invite work value manipulation (cf. search engine optimization). Caveat: structuring the logic of profit by malice into the public domain index would mean homeopathic cannibalization of the public domain to the private tools and thought it by definition resists. It must abstain from some level of private profit logic to sustain itself.

D. Random incentives discourages internal profit manipulation. An index whose total value is predicated on sharing network effects must also reward and recognize all contributors. The network increase in damages awarded helps compensate for the inefficiency of random rewards. And the incentive of random awards likely exceeds traditional copyright royalties incentives. Plus other real, non-monetary rewards of and motivations for sharing.

[12] “When their work is protected” means “when their work is stolen and returned” and some mechanisms would need to be introduced to minimize the perverse incentive of stealing work in order to lose in court. A major gap: How can proponents convince lawyers, law-makers, and judges that the public domain should be so protected at the cost of private industry?

[13] For instance, eventually Disney’s makes its IP public, its public relations improve, and profit streams shift from court cases to producing accessory goods (just as theatres make money on popcorn and services, not the film).