April 29, 2024

DMCA Week: Predictions Are Hard, Especially about the Future

My previous post on DVD jukeboxes has prompted an interesting discussion among our commenters. There seems to be a lively difference of opinion about how useful a DVD jukebox would be, what it would look like, and who would use it. Personally, I had envisioned a high-end video device that DVD collectors would buy to help them organize their libraries. But some commenters pointed out something I hadn’t thought of: a DVD jukebox—either a set-top device or a portable one—would be a godsend to parents with small children. Children not only like to watch the same video repeatedly, but they’re also far more likely to damage a DVD. Having a sealed, rugged hard drive on which to store a few dozen of junior’s favorite movies seems like it would be extremely convenient.

Of course, I don’t really know. Maybe parents already have devices that fill this need. Maybe the devices would be too expensive or too fragile. But that’s why we have markets: so people can try things to see what works.

It’s worth remembering that new technologies almost always wind up having a “killer app” that their creators didn’t expect. The creators of the Internet didn’t have email in mind, but it was the dominant Internet application by the mid-70s. Visicalc, the first spreadsheet, wasn’t on Steve Wozniak’s radar when he built the Apple II. And Apple didn’t invent podcasting, although they were smart enough to jump on the bandwagon relatively quickly once other people did.

None of these applications could have been developed if the technologies on which they relied hadn’t already been created. But if you’d tried to explain what the Internet, the microcomputer, or the MP3 player was good for before you could create the first one, you wouldn’t have been able to make a very convincing argument. I think the same is true of the kind of products we’d see if DVD ripping were legal. I’m pretty confident that we’d have some useful new technologies, but I can’t say exactly what they’d be.

This is one of the reasons I think DMCA supporters are wrong to point to the DMCA’s triennial review process as mitigating the DMCA’s negative effect on technological progress. The triennial process requires entrepreneurs to explain in advance how a given act of circumvention will benefit society. If we’d held the inventors of the Internet, the personal computer, or the MP3 player to that standard, we might not have any of those technologies.

Wikipedia as a Public Good

My post about Wikipedia and public goods prompted an interesting response from Judd Antin at Berkeley’s School of Information. He makes a number of sharp points, but let me focus on this response to the idea that free-riders don’t hurt Wikipedia:

This completely depends on what your goal is. On the one hand, sure, once you reach critical mass, the marginal cost of providing the good is zero (or near-zero), so who cares how many free-riders there are. On the other hand, there are lots of benefits to adding to the group of contributors. Wikipedia isn’t perfect – not even close. It’s wrong on a lot of topics. It’s poorly written in many places. It’s skewed heavily towards CS and popular culture, and away from things like history and literature. There’s a lot to be gained for Wikipedia by converting free-riders to contributors. And let’s not foget about the many, many systems that never get to critical mass.

Notice the background assumption in this passage that the numbers of free-riders and contributors are inversely correlated. That is, it assumes that each free-rider is in some sense detracting from the overall effort by failing to contribute. And it suggests that a better-designed institution might be able to convert more of those free-riders into contributors and thereby increase the total value of the public good that’s being provided.

The problem with this, I think, is that it gets the sign of the correlation between free-riders and contributors backwards. That is, on the Internet, the potential audience is so enormous that the most effective way to get more contributors is to increase the total number of users. For Wikipedia, there isn’t so much a “free-riding problem” as there is a “free-riding opportunity”: the more free-riders there are, the easier it will be to recruit new contributors down the road.

Antin also seems to be under the impression that I’m suggesting that we need to “rethink 100 years of theory” about public goods, which is certainly not the case. Standard arguments about public good problems work perfectly well for in cases like national defense and clean air, and I’m certainly not suggesting that we need to re-think those cases. My claim is simply that the standard model (and especially the focus on free riding) just isn’t a helpful way to think about online content creation, a public goods problem with dramatically different characteristics from clean air or national defense.

DMCA Week: Where's My DVD Jukebox?

A difficult challenge in thinking about public policy is understanding which innovations have not happened as a result of bad government policies. For example, it’s generally believed that the Bell phone monopoly stifled innovation in the telecommunications sector during the 1950s and 1960s. But if we had been assessing things from the standpoint of the mid-1960s, it would have been hard to say exactly which innovations were missing. It wasn’t until after the Carterfone decision in 1968, and further liberalizations in the 1970s and 1980s, that we started to see just how many innovations could be unleashed by a competitive market: modems, answering machines, fax machines, competitive long distance service, etc.

We face a somewhat analogous situation with the Digital Millennium Copyright Act. Like a lot of other people, I’ve made the argument that the DMCA has stifled important high-tech innovations. And the DMCA has been on the books long enough that if we’re right, then we’re probably missing out on some important innovations. But it’s difficult to say exactly what they are; they’re what Bastiat called “what is not seen”, and what Don Rumsfeld called unknown unknowns.

But while we can’t say for certain which innovations have been precluded by the DMCA, we can find plenty of hints. Just last week, Apple CEO Steve Jobs commented that “the whole category [of ‘digital living room’ video devices] is still a hobby right now. I don’t think anybody has succeeded at it. And actually the experimentation has slowed down. A lot of the early companies that were trying things have faded away.”

What’s striking about this is how different the evolution of digital home video products is from the explosion of digital audio products a decade ago. The period between the introduction of the first MP3 players in 1998 and the release of the iPod in 2001 was a period of fevered innovation in both hardware and software. Numerous companies, some of them fairly small, introduced music players. By the time Apple entered the scene in 2001, it was entering an already-crowded market. In contrast, we’ve seen only a trickle of new digital video devices. The Video iPod, Slingbox, and YouTube were all introduced in 2005. These are all great products, but they’re also curiously limited. We haven’t seen general-purpose video devices that replace DVD players and cable boxes the way the iPod has largely replaced CD players and is gradually replacing the radio. Today’s home video experience would be completely unsurprising to someone from 10 years ago.

How is the video market different from the audio market was? There are obviously a lot of factors, but it seems to me that the DMCA is one of the most important ones. It has made it effectively illegal to rip video from their DVDs the way people ripped audio from their CDs a decade ago. And the ability to rip CDs into MP3 files created the foundation on which the digital music device market was built, eventually leading to the iPod.

Consider two products that have not been widely adopted, due largely to DMCA-related legal problems. One is the XBMC Media Center, which used to be known as the XBox Media Center before Microsoft’s lawyers came knocking. Two years ago, I pointed out that the XBMC had significantly more functionality than a lot of “legitimate” media players. I think that’s still true today. One of the most important features was the ability to rip DVDs and store them on your hard drive for later playback. Unfortunately, the DMCA makes it essentially impossible for mainstream technology companies to duplicate this functionality.

XMBC, or other software like it, could have been the WinAmp of video, allowing law-abiding people to build libraries of legitimate video in an open format. That, in turn, would have created a market for digital video hardware to store, play, and manipulate these files, just as WinAmp and other MP3 software made the MP3 player market possible. But because the DMCA makes DVD-ripping effectively illegal, there is no legal way for people to get their existing DVD libraries into an open format, which drastically reduces the demand for open video devices.

Or consider Kaleidescape, an innovative, and very expensive, DVD-jukebox device that was introduced almost five years ago and has faced legal trouble almost from its inception. As Ed put it back in 2004:

DVD-CCA [the cartel that controls the DVD standard] is trying to maintain its control over all technology related to DVDs. In the good old days, copyright law gave copyright owners the right to sue infringers but gave no right to stop noninfringing uses just because the copyright owner didn’t like them. These days, copyright interests seem to want broad control over technology design.

Kaleidescape ultimately won its lawsuit, but the decision turned on fairly narrow contractual grounds that don’t provide much room for others to enter the market. The bottom line is that it’s still effectively illegal to sell a product that will rip DVDs to an open video format.

It’s not like Hollywood hasn’t been trying to produce a viable video platform. Way back in 2003, Hollywood had two proprietary download services called MovieLink and CinemaNow. Unfortunately, they crashed and burned. This part of the story is actually strikingly similar to the music industry, which had a proprietary download services of its own that did just as poorly.

What’s different is that video entrepreneurs don’t have the freedom that audio entrepreneurs did to opt out of the incumbents’ preferred platforms and build their own. It’s worth remembering that the recording industry tried to sue the first MP3 players out of existence. What we’re seeing in the video market is what the digital audio marketplace would have looked like if the recording industry had won its lawsuit against the first MP3 players. The recording industry lost that lawsuit, and entrepreneurs went on to build products that were much better than the “official” ones being pushed by the labels. Unfortunately, entrepreneurs in the digital video market don’t have that same option.

If the DMCA were not on the books, it seems likely that products like Kaleidescape and the XBMC would be growing rapidly in popularity. Many of us would have set-top boxes with 500 GB hard drives capable of ripping dozens of DVDs to an open, standard format for subsequent streaming to any display in the user’s house. The existence of those boxes would spur the creation of a wider market for other digital video products designed to interoperate with the emerging open video standard.

Unfortunately, that’s not how things have gone. Hollywood has managed to do what the recording industry was unable to do: to ban users from converting their legally-purchased content to open formats. As a result, the market for open digital video devices is a pale shadow of what it would be in a competitive market. We’re stuck with clunky, proprietary, and non-interoperable products like Apple TV that require users to re-purchase their existing movie collections in order to watch them on the new device. I think everyone would agree that it was a good thing that the courts didn’t let the recording industry shut down the MP3 player market a decade ago. So why do we tolerate a law that effectively shuts down the analogous market for DVD jukeboxes?

An Illustration of Wikipedia's Vast Human Resources

The Ashley Todd incident has given us a nice illustration of the points I made on Friday about “free-riding” and Wikipedia. As Clay Shirky notes, there’s a quasi-ideological divide within Wikipedia between “deletionists” who want to tightly control the types of topics that are covered on Wikipedia and “inclusionists” who favor a more liberal policy. On Friday, the Wikipedia page on Ashley Todd became the latest front in the battle between them. You can see the argument play out here. For the record, both Shirky and I came down on the inclusionists’ side. The outcome of the debate was that the article was renamed from “Ashley Todd” to “Ashley Todd mugging hoax,” an outcome I was reasonably happy with.

Notice how the Wikipedia process reverses the normal editorial process. If Brittanica were considering an article on Ashley Todd, some Brittanica editor would first perform a cost-benefit analysis to decide whether the article would be interesting enough to readers to justify the the cost of creating the article. If she thought it was, then she would commission someone to write it, and pay the writer for his work. Once the article was written, she would almost always include the article in the encyclopedia, because she had paid good money for it.

In contrast, the Wikipedia process is that some people go ahead and create an article and then there is frequently an argument about whether the article should be kept. The cost of creating the article is so trivial, relative to Wikipedia’s ample resources of human time and attention, that it’s not even mentioned in the debate over whether to keep the article.

To get a sense for the magnitude of this, consider that in less than 24 hours, dozens of Wikipedians generated a combined total of about 5000 words of arguments for and against deleting an article that is itself only about 319 words. The effort people (including me) spent arguing about whether to have the article dwarfed the effort required to create the article in the first place.

Not only does Wikipedia have no difficulties overcoming a “free rider” problem, but the site actually has so many contributors that it can afford to squander vast amounts of human time and attention debating whether to toss out work that has already been done but may not meet the community’s standards.

The Trouble with "Free Riding"

This week, one of my favorite podcasts, EconTalk, features one of my favorite Internet visionaries, Clay Shirky. I interviewed Shirky when his book came out back in April. The host, Russ Roberts, covered some of the same ground, but also explored some different topics, so it was an enjoyable listen.

I was struck by something Prof. Roberts said about 50 minutes into the podcast:

One of the things that fascinates me about [Wikipedia] is that I think if you’d asked an economist in 1950, 1960, 1970, 1980, 1990, even 2000: “could Wikipedia work,” most of them would say no. They’d say “well it can’t work, you see, because you get so little glory from this. There’s no profit. Everyone’s gonna free ride. They’d love to read Wikipedia if it existed, but no one’s going to create it because there’s a free-riding problem.” And those folks were wrong. They misunderstood the pure pleasure that overcomes some of that free-rider problem.

He’s right, but I would make a stronger point: the very notion of a “free-rider problem” is nonsensical when we’re talking about a project like Wikipedia. When Roberts says that Wikipedia solves “some of” the free-rider problem, he seems to be conceding that there’s some kind of “free rider problem” that needs to be overcome. I think even that is conceding too much. In fact, talking about “free riding” as a problem the Wikipedia community needs to solve doesn’t make any sense. The overwhelming majority of Wikipedia users “free ride,” and far from being a drag on Wikipedia’s growth, this large audience acts as a powerful motivator for continued contribution to the site. People like to contribute to an encyclopedia with a large readership; indeed, the enormous number of “free-riders”—a.k.a. users—is one of the most appealing things about being a Wikipedia editor.

This is more than a semantic point. Unfortunately, the “free riding” frame is one of the most common ways people discuss the economics of online content creation, and I think it has been an obstacle to clear thinking.

The idea of “free riding” is based on a couple of key 20th-century assumptions that just don’t apply to the online world. The first assumption is that the production of content is a net cost that must either be borne by the producer or compensated by consumers. This is obviously true for some categories of content—no one has yet figured out how to peer-produce Hollywood-quality motion pictures, for example—but it’s far from universal. Moreover, the real world abounds in counterexamples. No one loses sleep over the fact that people “free ride” off of watching company softball games, community orchestras, or amateur poetry readings. To the contrary, it’s understood that the vast majority of musicians, poets, and athletes find these activities intrinsically enjoyable, and they’re grateful to have an audience “free ride” off of their effort.

The same principle applies to Wikipedia. Participating in Wikipedia is a net positive experience for both readers and editors. We don’t need to “solve” the free rider problem because there are more than enough people out there for whom the act of contributing is its own reward.

The second problem with the “free riding” frame is that it fails to appreciate that the sheer scale of the Internet changes the nature of collective action problems. With a traditional meatspace institution like a church, business or intramural sports league, it’s essential that most participants “give back” in order for the collective effort to succeed. The concept of “free riding” emphasizes the fact that traditional offline institutions expect and require reciprocation from the majority of their members for their continued existence. A church in which only, say, one percent of members contributed financially wouldn’t last long. Neither would an airline in which only one percent of the customers paid for their tickets.

On Wikipedia—and a lot of other online content-creation efforts—the ratio of contributors to users just doesn’t matter. Because the marginal cost of copying and distributing content is very close to zero, institutions can get along just fine with arbitrarily high “free riding” rates. All that matters is whether the absolute number of contributors is adequate. And because some fraction of new users will always become contributors, an influx of additional “free riders” is almost always a good thing.

Talking about peer production as solving a “free-rider problem,” then, gets things completely backwards. The biggest danger collaborative online projects face is not “free riding” but obscurity. A tiny free software project in which every user contributes code is in a much worse position than a massively popular software project like Firefox in which 99.9 percent of users “free ride.” Obviously, every project would like to have more of its users become contributors. But the far more important objective for an online collaborative effort to is grow the total size of the user community. New “free riders” are better than nothing.

I think this misplaced focus on free-riding relates to the Robert Laughlin talk I discussed on Wednesday. I suspect that one of the reasons Laughlin is dismissive of business models that involved giving away software is because he’s used to traditional business models in which the marginal customer always imposes non-trivial costs. Companies that sell products made out of atoms would obviously go bankrupt if they tried to give away an unlimited number of their products. ” We’ve never before had goods that could be replicated infinitely and distributed at close to zero cost, and so it’s not surprising that our intuitions and our economic models have trouble dealing with them. But they’re not going away, so we’re going to have to adjust our models accordingly. Dispensing with the concept of “free riding” is a good place to start.

In closing, let me recommend Mark Lemley’s excellent paper on the economics of free riding as it applies to patent and copyright debates. He argues persuasively that eliminating “free riding” is not only undesirable, but that it’s ultimately not even a coherent objective.