Closer To The Ideal

Yesterday I wrote that patents are often bad for the economy.

Today, I see this article about how patents delayed the Industrial Revolution:

In late 1764, while repairing a small Newcomen steam engine, the idea of allowing steam to expand and condense in separate containers sprang into the mind of James Watt. He spent the next few months in unceasing labor building a model of the new engine. In 1768, after a series of improvements and substantial borrowing, he applied for a patent on the idea, requiring him to travel to London in August. He spent the next six months working hard to obtain his patent. It was finally awarded in January of the following year. Nothing much happened by way of production until 1775. Then, with a major effort supported by his business partner, the rich industrialist Matthew Boulton, Watt secured an act of Parliament extending his patent until the year 1800. The great statesman Edmund Burke spoke eloquently in Parliament in the name of economic freedom and against the creation of unnecessary monopoly — but to no avail.[1] The connections of Watt’s partner Boulton were too solid to be defeated by simple principle.

Once Watt’s patents were secured and production started, a substantial portion of his energy was devoted to fending off rival inventors. In 1782, Watt secured an additional patent, made “necessary in consequence of … having been so unfairly anticipated, by [Matthew] Wasborough in the crank motion” [2]. More dramatically, in the 1790s, when the superior Hornblower engine was put into production, Boulton and Watt went after him with the full force of the legal system.[3]

During the period of Watt’s patents the United Kingdom added about 750 horsepower of steam engines per year. In the thirty years following Watt’s patents, additional horsepower was added at a rate of more than 4,000 per year. Moreover, the fuel efficiency of steam engines changed little during the period of Watt’s patent; while between 1810 and 1835 it is estimated to have increased by a factor of five.[4]…

In most histories, James Watt is a heroic inventor, responsible for the beginning of the Industrial Revolution. The facts suggest an alternative interpretation. Watt is one of many clever inventors working to improve steam power in the second half of the eighteenth century. After getting one step ahead of the pack, he remained ahead not by superior innovation, but by superior exploitation of the legal system. The fact that his business partner was a wealthy man with strong connections in Parliament, was not a minor help.

Was Watt’s patent a crucial incentive needed to trigger his inventive genius, as the traditional history suggests? Or did his use of the legal system to inhibit competition set back the industrial revolution by a decade or two? More broadly, are the two essential components of our current system of intellectual property — patents and copyrights — with all of their many faults, a necessary evil we must put up with to enjoy the fruits of invention and creativity? Or are they just unnecessary evils, the relics of an earlier time when governments routinely granted monopolies to favored courtiers? That is the question we seek to answer.

Jim Stogdill writes:

The question of data privacy and ownership comes up over and over in our Yammer discussions. The last time it came up the thread ran for nearly 100 responses. Even though the typical post is something like “Who is using Grails?” or “Is the X application slow for everyone today or just for me?” data privacy is simply one of the biggest concerns going for a lot of companies these days. The mere suggestion that our data isn’t under our control is a big deal.

This point was demonstrated to me in a personal and compelling way during my first week on Yammer. I mentioned a client meeting so that I could share a few tidbits with colleagues. Hours later I was surprised and dismayed when a Google search revealed that my comments had been re-posted to the friendfeed of someone I didn’t even know. Someone on our network had written a quick and dirty app to follow his Yammer RSS feed and re-post everything to friendfeed. Then for good measure he followed everyone in our network. When I “politely suggested” he take it down he equally politely explained to me that I just didn’t get Web 2.0.

I think about this in relation to WP Questions. We haven’t yet offered truly private uses of the software, but I suspect that is something we will need to offer soon, if we are going to capture all the niches to which such software can be used.

Fanfic is already a huge phenomena in the US. Fans write stories about their favorite characters from TV shows. For instance, on Fan Fiction Net, there are currently over 10,000 stories posted by fans about Hannah Montana. These remixes tend to explore either romances that the fans want to see in the main series, or various plot twists that are perhaps too daring, in some ways, for the actual TV series.

In the US, fanfic is something of a hidden niche. The largest media companies are wary of fanfic, but so long as fanfic remains a tiny niche, few legal cases are brought.

The situation is different in Japan, where fanfic is out in public and on a huge scale, sold as comics at conventions that attract 10,000s of people. Here the manga companies are trying to work out a new relationship with their fans by allowing the fanfic to thrive.

In anmoku no ryokai, manga publishers might have found a tentative, imperfect, but ultimately more promising answer — a business model that could help media companies in both Japan and the US begin to navigate these potentially treacherous new waters. Instead of rewriting a national statute or hashing out separate individual contracts or crafting special licenses, it leaves everything unsaid in order to simply give the new arrangement a test drive. It takes the situation out of the realm of law and plops it into the realm of economics and game theory. It places the established publishers and the dojinshi creators in something resembling the prisoners’ dilemma: If they cooperate — that is, if they honor the terms of anmoku no ryokai — they both gain. But if one overreaches — if publishers crack down aggressively or if dojinshi creators go too far — they both suffer.

Instead of negotiating a formal pact, both parties can advance their interests through the deterrent of mutually assured destruction. What that accommodation lacks in legal clarity, it makes up for in commercial pragmatism. If the experiment fails, then everyone reverts back to the legal status quo. But if it endures, and if everyone comes to realize that the interests of the copyright holders and the fans are aligned, it could become the prelude to wider adoption of Creative Commonsstyle licenses and a more coherent set of rules for a remix culture around the world.

One afternoon in May, I walked into K-Books, a third-floor bookshop in Akihabara, a neighborhood of flashing lights and moving bodies that is the epicenter of Tokyo’s otaku culture. In one section of the store, I found graphic novels by Clamp, that circle of women who went from amateurs to best-selling pros. I bought a copy of Chobits, their series about a young man who has a friendly female android assistant; a volume of xxxHolic, about a high school student who works for a witch (despite the trio of x’s in the title, it’s not porn); and a hardcover edition of Card Captor Sakura, about a girl with magical powers. And in a nearby section of the store, I bought dojinshi versions of those same titles. For 210 yen ($1.80), I picked up Hacker Chobits, in which the female android expands the frontiers of “friendliness.” For 630 yen ($5.40) I bought a yuri, or lesbian, version of xxxHolic featuring the two main female characters of that series. And for another 630 yen, I purchased the 70-page, sprightly illustrated Sakura Remix, wherein the heroine encounters a strangely amorous frog and later discovers a hidden video camera in her classroom at an especially inopportune moment.

The official versions and the remixed versions weren’t side by side. But they were for sale perhaps 10 yards away from each other. In the same store. Think about that in a US context. You walk in to Barnes & Noble and walk out with a copy of Harry Potter and the Deathly Hallows — as well as an unauthorized remix of a May-December romance between Hermione Granger and Professor Minerva McGonagall. Our American IP lawyer is starting to get woozy…

I love it when people quote what I’ve written on this blog, and link back to my blog, but I find it irksome when they quote me without giving me any credit. I notice Moonviper is using a part of my essay as part of their marketing:

The text is from my essay “How much do websites cost“. I wouldn’t mind being quoted if they gave credit, but I hit the “View Source” command and searched for “teamlalala.com” and got nothing. They should link to the original essay and make clear that they are quoting my essay.

Awful and sad. Rogers Cadenhead writes Why Leslie Harpold’s Sites Disappeared. We are often misunderstood by our family, and they often hold a worrisome power to censor us after our deaths.

I sent an email yesterday to Leslie’s niece, asking if it would be possible for some of her friends to reprint her work as a book and web site. Today I heard back. They will not allow anything to be republished. Because I’ve been told that some of her writings might be a sensitive issue for her family, I replied to her niece that if this is indeed the case, those particular works could be excluded from reprint.

This did not go over well.

I was told that it’s none of my business why her family doesn’t want her work republished, which is absolutely true, and that her legacy “is not dependent on websites or books; her legacy is with every person who knew her and loved her.” This is only partially true. Leslie was an early pioneer in the creation of autobiographical content and experimental web design. She left behind thousands of web pages, many of which are as memorable as Possible Scenarios for Heaven from 2003.

Leslie’s family appears to have decided to let her entire body of work disappear and be forgotten completely. The only things that are left online are articles she wrote for other sites, such as The Morning News.

This raises an important question for those of us who create work on the web that we publish ourselves. When heirs decide to bury a web creator’s body of work by shuttering sites and rejecting all republication requests, can anything be done to save the material?

If the heirs of Charles Dickens had decided that his novels were not his legacy, they could have spurned all publishers and let the books fall out of print, but the existing copies would not have vanished entirely. There still would be physical copies of the books to read and some would’ve survived long enough to fall into the public domain.

It is a sad story where one’s career fails after one has died. The worst thing you can do to a pioneer is erase any trace of their innovations. That she had a big impact on a lot of people is obvious from what was written about her, This Is Not a Eulogy

Todd Levin: Leslie was the Internet’s den mother. She adopted me in 1996, after discovering my Web site—perhaps you were familiar with its very memorable URL, http://users.interport.net/~toddl—and presented me with her plan to launch a web zine called Smug. It was to be both a repudiation of the early Web’s Whole Earth Catalog brand of sincerity, and a big Midwestern embrace of everything we hold dear. It was going to be amazing. It was going to change the medium, and maybe even the world.

I thought she was full of shit, and that Smug would never be seen by any eyes other than Leslie’s. I also honestly thought she was using this fictitious zine as counterfeit currency to purchase an online friendship, because I didn’t trust anyone I met on the Internet. But no one else had shown any interest in my writing, and there’s something very intoxicating about someone who wants to create something new and explosive and world-changing, and wants you on her team. So yes, fuck yes. Smug was going to change the world.

…Liz Entman: I knew Leslie only through her writing, which reveals a woman I would very much have liked to meet in person—sensitive, intelligent, thoughtful, perceptive, and deeply, quietly hilarious. Her writing is fresh and very, very good. She wrote an article for us before I came on board that is especially poignant to read now—“How to Write a Thank-You Note”—which seems to reveal her wit, warmth, and humor as much as it explicates a problem of modern etiquette. It is fitting, then, to give thanks here for Leslie and her many gifts. She will be missed.

…Liz Entman: I knew Leslie only through her writing, which reveals a woman I would very much have liked to meet in person—sensitive, intelligent, thoughtful, perceptive, and deeply, quietly hilarious. Her writing is fresh and very, very good. She wrote an article for us before I came on board that is especially poignant to read now—“How to Write a Thank-You Note”—which seems to reveal her wit, warmth, and humor as much as it explicates a problem of modern etiquette. It is fitting, then, to give thanks here for Leslie and her many gifts. She will be missed.

Anil Dash wrote, Leslie Harpold: Always Fearless, Never Smug

If you didn’t know her work, you might fear that someone who owned the domain names fearless.net and smug.com might be a bit, well… prickly. But more than 10 years after Leslie Harpold helped start some of the most clever and intelligent personal sites on the web, and just a few short months after her untimely passing, the lasting impression of Leslie’s life, on and off the web, is of surpassing kindness. And as we look at 10 years of blogging culture this week, her impact and legacy in the world of blogging is well worth revisiting.

The sites that Leslie helped create are legion. There’s The Historical Present, her blog. And Harpold.com (formerly Hoopla.com), which acts as something of a gateway to the rest of Leslie’s legacy on the web. The Smug archives still bear witness to the early experiments in design and writing which Leslie shared with us all. And each year, Leslie shared with us her Advent Calendars, (see 2001, 2002, 2003, 2004, and 2005) making explicit her desire to give a gift to the entire web.

Clearly, Leslie Harpold had a big impact on the early web, and on the early pioneers of the web. Her life, and work, is now a part of history. It is all together tragic that her family wants to erase her memory, just because they are uncomfortable with some of what she wrote.

Darren Hoyt and his wife discovered a remarkable scene one day of a turtle, a frog and a spider. They took a photo of the scene, which became popular. And then, sad to say, some newspapers began stealing the photo without attribution:

Apparently, she first discovered the photo and backstory in OK! Magazine, one of England’s sleazier tabloids. I hadn’t given permission to any magazine, so I started Googling around.

Turns out another British publication, the Daily Telegraph, had also published the photo, initially crediting it to WENN (World Entertainment News Network). WENN is largely known for supplying paparazzi/celebrity photos to the entertainment media.

In fact someone from WENN had contacted me months before, but I’d refused to provide a hi-res photo unless I was told what in what context it would be used. I never got a response, but the photo was taken from Flickr anyway.

The lady at WENN seemed a little startled that I’d called their London office directly. She agreed to remove the photo from their database, but offered little in the way of an explanation, apology, or disclosure about how much money was exchanged for the photo. Since then I’ve been told the photo had been scooped up and sold by mistake, and would be removed from WENN’s database. Mistake or no, I suspect this isn’t uncommon at all.

My dad had a popular lecture that he used to give to amateur photo clubs about the value of the occasional great photo. During his 57 year career, he took 700,000 shots, of which he would immediately discard 90%. He was left with about 70,000 high quality shots that got picked up by stock agencies and other organizations that agreed to represent his work. Of these photos, about 80% never made a single sale. Only 5% had multiple sales. The best 2% (of the 10% he did not discard) accounted for more than half his income.

When I was a child, I heard story after story about the surprise best sellers. One morning in 1970 he walked out the front door with a camera in his hand and, seeing a butterfly on a flower in the front yard, took a picture of it. He had taken dozens of other butterfly photos, but for some reason that one went on to make $17,000 over the next 15 years (triple the figure to adjust for inflation).

One 4th of July in the early 1980s he took some night shots of the fireworks, which he then comped together in his darkroom using traditional photo overlay techniques (this is more than 10 years before Photoshop). Though he had dozens of other fireworks shots (which didn’t sell), this one went on to make $36,000 over the course of many years.

His biggest surprise was when he went to Morocco as part of a tour for other professional photographers. For two weeks they were taken around in a bus to famous spots. He recalls one time they all got out at a famous mosque and stood their photographing its golden dome. He looked to his left and to his right and saw 15 other professional photographers clicking away. He thought to himself, “I’ll never make any money on these shots. We are all pros and we are all taking the same shot.” But the next day they were out in the desert, photographing a ruined, abandoned fort. There were no other human beings in sight, only the bus and the bus driver and the photographers. But then my dad looked off to his right and in the distance, saw a man, dressed all in white, come over a sand dune. The scene reminded my dad of one of his favorite novels, The Martian Chronicles, a scene of infinite desert, and there in the middle, the impossibly lonely figure of a single human being walk across a vast expanse of pure sand. So my dad took that shot, which the other photographers did not think to take, and that became his best selling photo of Africa. Several encyclopedias and travel guides bought the rights to it.

In the late 90s the arrival of Photoshop and CDs full of royalty free images changed the industry, and it became harder to make a living, but my dad found that the top 1% (of that 10% he had not discarded) of his photos continued to generate some good sales.

He worried a great deal about amateur photographers who were giving away the rights to their photos without realizing the value in the occasional photo. When Flickr emerged, he had some deep reservations about their too casual promotion of the most open Creative Commons licenses. When the story broke about Virgin Mobile using a photo of a girl which the novice photographer had marked for “commercial use” my dad wrote several long articles for local amateurs about the dangers of offering photos for commercial use without securing a release from humans that appear in the photos. It was clear, in the Flickr case, that the photographer hadn’t really understood what the words “commercial use” meant. My dad developed a lecture on this subject and was invited to speak at over a 100 amateur camera clubs in New Jersey, Pennsylvania and New York.

All of this is to say, when we take photos, we should be aggressive in defending their value. If we wish to share them with the public, we should all do so having educated ourselves about what rights we are sharing, and what value we are letting go of. Every once in a long while, people take photos that are worth a great deal, and even when they are not interested in making money off that photo, it doesn’t seem fair for others to do so without the permission of the photographer.