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Tensions between Free Software and Architectures of Control

This is the text of a talk given by James Boyle at the CODE Conference in 2001. It is reproduced with his permission. Also available are audio versions:

Thank you very much, Bill, and thank you for inviting me to this remarkable gathering at which I am, I think, consuming far more than I am going to produce in terms of insight, but that's I suppose the nature of peer-to-peer cultural production.

I'm going to talk about intellectual property and the free software and open source movements and then to talk a little bit about intellectual property's impact outward into the wider society.

The structure of my talk is basically that of a Greek drama in which apparently small choices -- you know, you decide to kill someone on a road -- which of us hasn't done that? leads ineluctably to a tragedy in which you find yourself sleeping with your mother at the end, and along the way the inexorable progress of the tragedy is made all the more poignant by an extremely annoying chorus that stands on the side and goes "See? He's really in trouble now! It's going to get worse from now on" and my rôle here is that of the chorus. "Look at this little choice and see how it leads us towards doom." I'm not quite as negative as that makes it sound but I just wanted to tell you what the structure was.

I thought I'd start though with a little bit of a broader focus which is: why do we care about this stuff? That is to say, why are there so many people from so many different disciplines and backgrounds and communities gathered here focusing on something which could be considered either technical, or to do with intellectual property, but which certainly wouldn't immediately be seen as drawing together such a diverse and interesting group.

So why might one be interested in -- let's start with -- free software?

Well, the most basic level: you might be interested in it on a purely technical level.

That is to say, you might think things work better when you can get under the hood; you might think software works better when you can have access to the source code, and you might have a purely technical interest. "I think the security software will be better; I think the networks will function better", and so forth. But clearly that, and that, I think, is a real interest, and I think there are some very interesting arguments, that it can be demonstrated that the free software model will under certain sets of conditions produce technically superior products, all things being equal, to a proprietary model; there are actually pretty good economic models which show that that's true. But that I don't think would explain this audience, at least not all of it. This is the Eric Raymond idea that "With enough eyeballs, all bugs are shallow", which is really the most succinct encapsulation I've ever heard of Karl Popper's idea of the open society, which is that one of the virtues of open societies is that they tend to make fewer mistakes, as well as having a series of other independent normative justifications.

Another interest in free software might be in terms of its social effects. So we might have someone who never uses a computer directly themselves, writes exclusively with a fountain pen and never wants to have a computer, but who wishes digital networks which are going to be an important part of the society they live in to be built around protocols, around logical layers, that are non-proprietary, because they think it produces a more democratic society, a society with more protections for civil liberties, a society with less industry concentration or what have you. So that's a kind of "what kind of society do you want to live in?" and "to what extent does open source play a role there?" but again it's the software actually producing a social result.

The third interest I would describe as political or metaphorical.

Here it's the idea that free software is interesting not just in and of itself, but as an example, an example of the potential of forms of production, perhaps broader cultural production, which are not as narrowly constrained as we've come to believe in this society.

Many of you have heard the term "the tragedy of the commons", the idea that given a social good, whether it's an atmosphere or literally a commons on which sheep is grazing or whether it's a fisheries system, that if you have no individual private owner with strong rights to exclude, inevitably we will lead to a tragedy; there will be over-consumption or under-investment in the commons; we'll end up over-grazing, over-fishing because no-one has an incentive to take account of the consequences. And that idea, even if people couldn't identify it as such, has seeped into people's popular consciousness. The idea is: property rights are better; if you want something to work, privatise it, convey a property right with strong rights of hierarchical control to a single entity, and that entity will therefore act to maximise the value of that asset whether it is a literally commons, a grassy commons, or a railway system or what have you.

The thing about ... and this has ushered in or is part of a general neo-liberal triumphalism which says "The war is over, capitalism won, property rights are the best, ya ya ya!" The thing that is interesting here is that the free software movement seems to present a very powerful counter-example, an existence proof that in some cases we may not have a tragedy of the commons but as Carol Rose puts it, a comedy of the commons, a happy situation in which collective management of a resource is actually better in purely cold hard economic terms, as well as perhaps in other more social contexts.

Here the idea is to say, "Wait a little bit before you hit me with your property rights rhetoric and your neo-liberal inevitability, what about these counter-examples?" and once you start looking at open source or free software, you start saying well we do things this way a lot of times, and in many ways academia is a classic open source production system in which reputation matters far more than actual proprietorship, in which there's strong incentives to spread more broadly, in which people build by accretion and so forth.

So, these then are the stakes of the debate about, and one could go on multiplying the reasons that people are interested in free software or open source, but these are some of the stakes of the debate: technical efficiency, social effects and a sort of metaphorical concern of how society should be run, what kind of prop system should we actually have ...

What I want to do is talk about the future of intellectual property, to predict a little bit about the future, and I've learnt that the key thing about predicting the future is largely to predict things which have already happened so I'm going to attempt to do that as much as possible but at least we'll have a slightly forward looking quality.

And I'm going to talk about the way in which certain kind of economic rhetoric or economic logic is shaping the way in which we think about intellectual property protection and thus, the world in which, the legal and technical environment within which free software and open source will continue to exist and thrive or not. And I'm going to argue that in many ways it presents a profound challenge and threat to the free software movement, something that I think is bad (that it presents such a threat).

So there are three objections, obviously, to talking about the economic background to intellectual property ideas. One is that it's just uncivilised to talk about economics after lunch. This is true; I concede it; I should know better; I was brought up properly, but I went to America and fell in with a bad crowd so ... The other two objections are the objections of the formalist and the cynic. The formalist says "We should do law, and law is what's written in the books and this economics stuff isn't in the books so we shouldn't be looking at it". This is stupid so we may pass over it at some speed. The cynic says "Well, there is an economic logic to intellectual property but it isn't economic arguments it's straightforward economic payments that are made by interest groups to legislators. It's not that they make economic arguments to legislators, it's that they say ``Here's some money; vote for this!''" There's certainly some truth to this and people have stressed that during the discussion.

But I want to maybe add something to the other side of the debate.

While admitting that Disney and pharma and big software in general have a rapacity which is truly fascinating, exemplary one might even say, there's more going on here than just straightforward payments for economic interests. In fact in many cases one can argue that the policies that are being pursued are not even good for the big content providers themselves. What's more the things that they can get Congress to buy, that they can get the British Parliament to buy, are often things where there apparently is a strong argument, even if one which ultimately turns out to be mistaken, on the economic effects of the legislation they're proposing. Judges too turn to the economic effects in applying and interpreting these rules. The economics matters, even if it doesn't drive the policy in some pure way, which it certainly doesn't.

So let me then describe two waves of rhetoric, two waves of economic logic, ways of thinking about intellectual property, one which we are just reaching the end of and the other which is just beginning.

The one we are reaching the end of is one that I think you will have heard before: it has been the justification for really an extraordinary wave of expansion of intellectual property rights in the last 15 years, a development of intellectual property, expanding it in length (of the term), in breadth (the things that it covers), the scope (the actions that it regulates with regards to the things that it covers). There really have been relatively dramatic expansions in all of these areas. One could work one's way through biotech, patents, business methods, as was mentioned before, the extension of copyright law, the introduction of certain forms of trademark protection well beyond what trademark was previously said to be.

But the general thrust here is outward, ever outward and rather than giving you the details, many of which I think Bill framed very nicely (both the details and the exceptions and limitations on some of these expansions) what I want to do is convey the larger logic that drives the project in many if not all of these cases. The argument behind this movement which I would describe as a second enclosure movement, an enclosure here not of the grassy commons from the fourteenth to the seventeenth or eighteenth century, but rather a Commons of the Mind.

The logic of this second enclosure movement goes something like as follows:

Information goods, the economists tell us, are non-excludable and non-rival. A rival good is like this glass of water; if I have it you can't have it; you can't be drinking it at the same moment that I am. Non-excludable means that it's hard to exclude people from access to goods. If you produce one good it may satisfy an infinite large number of consumers; one MP3 file could be played by millions of people. The non-rival and non-excludable qualities are not the same but they do go together in certain ways.

And this, which we might look on as a happy thing, "Isn't this great? We can share!" As Jefferson says, ``You can light your taper at mine and my light is not thereby diminished. Ideas can spread through the world; they are infinitely expansible, like fire, without lessening their density at any point.''

This might seem like a wonderful thing, a happy thing, but of course the economists, ever eager for the downside to the story, are quick to alert us to the dangers of under-production: Since the first copy of the software program, the first edition of the novel, the first iteration of the drug can easily be copied an infinite number of times where will the incentive be to produce the next novel, the next software program, the next drug?

The argument therefore is: we need legal monopolies to make these things excludable, so now you're not allowed to copy my book, my program; you're not allowed to copy my gene-splice, and this will convey the adequate legal protection.

This is of course a monopoly. We're producing here a monopoly.

In the 1840s Thomas Babington Macaulay argued perhaps most famously against this, and since I'm here I can't resist quoting him:

"I believe, Sir, I may take it with safety that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind, any reason why a monopoly of books should produce an effect directly the reverse of that produced by the East India Company's monopoly of tea, or Lord Essex's monopoly of sweet wines.

"Thus then stands the case: it is good that authors should be remunerated and the least exceptionable way of remunerating them is by a monopoly, yet monopoly is an evil for the sake of the good. We must submit to the evil, but the evil ought not to last a day longer than is necessary for the purpose of securing the good."

(Politicians were both more articulate and more interesting in those days!)

Now, there's the argument in favour of intellectual property rights. The Internet merely exacerbates the argument. That is to say, the Internet, in particular with digital goods, makes goods less rival and even less excludable.

So now I don't even have to wait for you to copy the CD onto your tape; it can be simultaneously on my machine and your machine; we don't even have trivial difficulties of you driving round to my house to make a cassette tape of it; it can be instantly everywhere and nowhere. The Internet is seen as a sort of giant vacuum cleaner consuming all the intellectual property in the world, and the answer is to accelerate the process of commodification to extend the intellectual property rights. As the copying increases so must the protection increase, to compensate for the presumed losses that proprietors are suffering.

Now is this true?

Well, the basic argument is true in some cases. There are certainly cases in which some form of monopoly or other forms of reward to the producer is an extremely good idea socially. Is it true in detail? Well, the fascinating thing is: we don't know.

There is remarkably little empirical study of the actual effects of intellectual property; there are some studies, fairly good ones for example on semiconductors, decent ones on the software industry, some ones on the early history of the book trade, but there are remarkably few empirical studies on the actual need for particular intellectual property rights rather than the concept itself. This is remarkable in that we live in an era when the most mundane and apparently unexceptionable government subsidies -- let's feed poor children sometimes, for example -- is taken "Well I don't know about that! You know, I mean, you start there -- where will it all end?" And yet here we have what is effectively a multi-billion dollar subsidy being handed over for which we have no or very little empirical study, some bad economic modelling which doesn't control for some things that it does, and a conclusion that therefore we need more rights.

That's -- um -- to be honest, this is a summary of a big field; there is better work than that, but by and large: it's very shoddy stuff. Very briefly, why is it shoddy?

One reason: if you just think about it, although information goods are often non-excludable, they're frequently tied to goods that are excludable. So you can copy the program, but you made need access to a help-line in order to make it work. You may need services. You may need somebody to help you with it. You may need the manual. So you may actually pay for the program cause you want those tied services. The book and the phoneline are excludable, even though the program is imperfectly excludable, so that may adequately compensate. There are similar arguments with patent law, with goods that have a kind of cult of authenticity about them "This is the original, signed by the author!"

Then there's the possibility of producing tied goods which subsidise the activity. John Perry Barlow's idea of the economics of the Internet seemed to be that everything would be given away, but you'd make it up with T-shirt sales -- John Perry Barlow's a friend of mine, but I have to say this worked well for the Grateful Dead. I mean it really did work pretty well for the Grateful Dead, but it may not generalise to everything. I don't think it would work for drug production for example.

But still, there are in the abstract ... one can't tell till one looks at the particular case whether or not you need the intellectual property right and whether you need it to be this long or this broad or whatever. You need empiricism, right? You can't just model it and go "Oh, that's the answer."

But this is all the prehistory, so to speak. This is where we are now. That's the logic of the enclosure movement.

The actual answer was to by and large ignore the carping critics and academics who said, "You know, you really have very little proof this is needed. Actually, the Internet helps content providers as well as hurting them. Cheap copies mean that you can do searches to see who's pirating your stuff because cheap copies mean you can have search engines and search engines are the best piracy detection devices ever invented, et cetera, et cetera, et cetera. Your advertising budget is now zero. Your distribution budget is now zero. Ok, you're losing some money to ``unauthorised copying'' - I was careful there, Richard - but are you perhaps making it up in other ways?"

Well the answer is "Let's not find out. Let's just pass a whole lot of laws really really fast, because it's clear that the Internet is growing so slowly ... that without further intellectual property protection the whole thing will grind to a halt." Well, I mean, you know, fine!

But that's just the first stage, and now comes the bad part.

Once you've got a monopoly, what happens?

Once you've got basically a monopoly, and we can argue about whether intellectual property is a monopoly, and there is quite an interesting argument about that which I'd be happy to get into, but for now let's just say it's like a monopoly in lots of ways.

Monopolistic markets are not efficient. We know this. The monopolistic producer will have an incentive to set their prices high so that they can recover from people who'll pay a relatively high amount, and there'll end up being consumers out there who'd be willing to pay more than the cost of production of the good but not as much as the monopolist's charging, and they won't get the good. And to the economist this is a little tragedy all in itself -- this is that little portion on the graph that is shaded grey, kind of in a sad way -- the little triangle, that little tragic triangle there, of social loss, is the people who would pay more than cost of production but won't get it cause the monopolist is setting the goods high.

We all meet this even though we may not be thinking about it in terms of monopolies.

You're flying on an airplane. The airline company is going to fly an airline from London to New York, and it's going to have a hundred seats, say. There are thirty people who would pay a thousand bucks because they've got to be there. Now supposing the airline company has to charge the same price to everyone ... all of us are far too cheap to pay a thousand dollars but we might pay two hundred dollars or three hundred dollars or four hundred dollars depending on our resources: our ability to pay and our willingness to pay If they're stuck on a single pricing schedule they'll probably, depending on how this works out exactly in the figures which I won't tax you with, they could just say, "Ok, we'll just set the price at a thousand and we'll fly the plane with eighty empty seats", which would be a disaster economically speaking, but of course airlines don't do that, what they do is they price discriminate, right? They say, if you can't stay over Saturday night, you pay more. If you buy it quickly, you pay more. If you want to fly in business class you pay ten times what you pay in coach.

And they do a variety of things so that the truly cheap person, the person who flies in a hurry and so forth, ends up paying a tiny fraction of what the high-end people do. From an economist's point of view that's actually a pretty good solution. If the plane is already going from London to New York, you don't want those seats empty, you want variable pricing levels.

And the same logic holds for intellectual property goods. In fact it holds even more strongly.

Imagine for a moment that I am Bill Gates and I have Microsoft Word here, and I have gone to the Congress and I've said "I need my legal monopoly, and I need it to be life plus seventy years or ninety-five years in the case of a corporation, and I need this and I need that ..." and the Congress has said, "Cert... Have another heaving slice of monopoly rent, Mr Gates!" "No, no, I couldn't. Oh well, if you insist!"

But now, we are at the stage where then the question is "Well what's Bill going to do? How's he going to sell Microsoft Word?" Now if Bill picks a price, which is a flat uniform price, which people are willing to pay, then he's going to end up saying, "Well, there are all these firms out there and law partners and so forth and I can get five hundred pounds for Word and I'm going to charge that to them, and there are all these penniless students and artists who would pay twenty pounds or thirty pounds but I'm just going to have to write them off." And this is a tragic -- we're back in the tragic triangle again -- your unmet social need is Bill's concern here!

And so the answer is for Bill to be able to sell to you at an infinitely variable range of prices, tailored by your ability and willingness to pay. That way everyone will get the good at just the crux of their ability and willingness to pay.

So far, so good. So far, we're not talking about "law" in the straight public law sense (there may be contractual arrangements involved here) this is just a pricing decision; what's the problem? Why does law need to get involved more centrally?

Why, because I suspect, because you're that kind of people, that were we to sell this to you and not put any restraints on you, you might then end up selling to each other. The students might end up selling to the law partners, and you might actually give things to people -- it's been heard of. There might be actually gifts going on, and we can't have that! Loans! All of these things would undermine price discrimination, so they must be forbidden. If you're to get price discrimination (which is the only efficient market for a monopolisticly produced and delivered good ... once you've got the monopoly, the only efficient market is to have perfect price discrimination) producers have to be able to control the behaviour of their users in the aftermarket.

That is to say, it is not enough that I get the monopoly over the thing, the gene-splice, the business method, the program. I then have to be able to control your use of the thing, because otherwise you'll engage in arbitrage. You'll resell. You'll lend. You'll go to second hand bookstores and buy things again, and just engage in all kinds of behaviour which will eat away my reason for doing it, and so I'll say "Fine, I'm just going to sell it at five hundred pounds!"

And if you want a more benign example of this, think of the distribution of AIDS drugs. Companies producing AIDS drugs say "We'll give them to sub-Saharan Africa at cost, but, we want a quid pro quo. The quid pro quo is you've got to stop parallel imports of these drugs back into the developed world, otherwise they're going to eat the heart out of our market here." And of course you might question, "Yeah, but did you need the patent on the AIDS drug in the first place? Wasn't this all funded by government-sponsored research? Let's just have a little more--"

But leaving that aside, once you've got the monopoly, price discrimination has a logical inexorability that says "You know, Gosh! now that we've given them the monopoly, we do have to go further. We actually have to allow them to control the user in the aftermarket." How?

Well, for perfect price discrimination, I have to know what you're able and willing to pay. Now, what we use in most markets is we use indicators of this. So people buy it in hardback; if you really want it you buy it in hardback and if you want it or you don't have enough money, then you buy it in paperback, and if you either have no money or don't want it that much or are kinda cheap then you get it in a used book store or maybe in a library, right? going down the scale of ability and willingness to pay.

That's your self-revelation.

But that's not good enough. What we need to do is I need to know how much you can afford to pay to reach the Perfect Curve, as Julie Cohen calls it, which means I need to cross-correlate all kinds of data about you. I need to know where you go on the Internet. I need to know how long you lingered over a particular site. I need to know a little more about your credit balance. I need to know all this stuff so -- to the extent that there are any restrictions on gathering personal information on people, and that's a dubious question in the United States -- we need to phase those out. We need more information about you. We need to be able to enforce contracts, the kind that Bill was talking about, currently often not enforceable. I need to be able to enforce contracts that say you may not resell. I need to abolish the so-called "right of first sale" or "right of resale" of a copyrighted good so that you can't sell the digital book once you're done with it.

I need to have hardware that is coded to you. Software that is coded to you -- this is Richard Stallman's e-Text -- so that reading someone else's eBook is a crime or at least a tort, cause otherwise you're gonna ... the student will get the cheap book and give it to the person who could afford to pay more. Again, the monopolist will say "Ah ah ah! I'm just releasing it at a flat price and we have massive social loss."

And I need the State's help in doing a lot of this. I need the State to change antitrust law and competition policy. I need the State to make these contracts enforceable. This is the Uniform Computer Information Transactions Act, UCITA, which introduces, which validates a lot of these fairly awful licences, and above all I need technical measures, digital fences, that code stuff to you and I need you not to be able to get through those fences and I need to make it a crime or at least a tort for you even to produce a set of digital wire-cutters, because otherwise you might get through the fence and you might get access to this stuff , not just that you might copy it, but it's bad enough that you might evade my desire to sell you just that component of the good that I want to.

So, this logic that I've been describing, this logic of price discrimination is premised on the initial creation of the monopoly, and the idea is: once you create the monopoly the paradox is you have to go even further unless you want massive social losses.

You have to go further in ways that also change the nature of the networks.

If this is your vision -- let's say you're a business person thinking through this framework -- you want to sell the newspaper at an infinite number of prices, infinitely variegated, more granular. As Michael Century was saying, you want to use XML to code particular things so that you can sell the quote, the phrase, the particular picture. You need micropayments. What else do you need? Well this whole anonymous network thing starts to seem like a bug rather than a feature. You need hardware-encoded global universal identifiers. You need IP numbers that locate people geographically. You get the idea.

Now this means that the little things one sees from Intel with the attempt to introduce a chip which actually effectively is an identifier, or Microsoft ... wonderfully ... I love when stories validate paranoia. The idea that Microsoft was actually embedding personal identifying information in every Word document, in ways that they could read. I mean it was better than any of my paranoid friends had even come up with! ... All of these things come to seem like not little variegated nosy things, but actually as an economic logic, and what's more, if one accepts its premises -- and I do not -- but if one accepts it, once one has taken the premise it actually seems like a good idea.

(Momentary parenthesis: is all of this stuff actually right and necessarily true? I would argue it's not. Even with the existence of the legal monopoly, copyright. In fact under our current system what we have is an extremely leaky system, and this is a Good Thing.)

Information goods generally have a marginal cost which is pretty close to zero. The next copy of the program costs nothing.

The ideal situation in such a world is for the program, the good, to be available -- we solve the incentives problem somehow, whether by direct payment from government, whether by a more limited intellectual property right; you've got to solve the incentives problem; you've got to produce incentives and ways people get paid, this is true, right? At the point that you've solved that, thereafter things should be available at marginal cost, namely zero. Just as perfect price discrimination is an ideal solution, so is "Solve the incentives problem, and then distribute at marginal cost namely zero". That's also an ideal solution.

What's the difference? In this one, the price discrimination .. the producer captures every penny of consumer surplus; they get everything that you're willing to pay, for everyone. In this [the other] situation, the distribution is rather different.

Socially, they're also different. This network, the price discrimination network, is a world I don't want to live in. It's a pay-per-view world. It's a pervasive surveillance world. It's a world of tracking. It's a world where privacy appears to be an attempt to produce social inefficiency. It is a world in which you start letting a business plan drive the construction of the democracy, which strikes me as a bad idea. I think it produces a bad cultural world, et cetera et cetera, it's bad!

So what does it do for free software and open source? Well it's profoundly challenged by free software.

It's not an accident that first case in the United States that seriously challenges the Digital Millennium Copyright Act's anti-circumvention provisions which are these provisions which protect the digital fences that tightly control copies ... it's not an accident that the first case should be the suing of the inevitable Norwegian or Finnish hacker who produces a code to crack this copy protection system so that DVDs can be played on a Linux machine. It is in fact relatively natural that open source, that free software, with their logics of "Let's open the source up. Let's have multiple forums. Let's not centralise control. Let's not have centralised decisions about design." All of these things actually are in profound opposition to the logic of price discrimination that I have been describing.

Is this all going to happen and are people going to buy this rhetoric?

Let's start with the rhetoric point.

Martha Woodmansee today -- and I've greatly benefited from Martha's work; it's profoundly influenced mine -- described the ideology of the romantic author. In my view our intellectual property system is in part built on a fusion of the first economic story I told (the story about public goods, non-rival and non-excludable) with an idea of romantic authors. Authors who produce out of thin air. So they don't need much of a public domain to work with, cause they produce out of thin air, right? You don't need a public domain, you don't need a realm of the unowned, if you're really original! What did you need to borrow stuff from? It's a kind of combination of the public goods story (the economics story) and the romantic author story. That does sell. People believe that. They buy it. It makes sense to them, and for nontrivial reasons. We shouldn't ridicule it.

This second story, the price discrimination story, is a harder sell to the public. You know what most people's reaction is when they find out that other people paid less money to fly on the same plane in the same seat with them? They say, "it's unfair!" The economists go, "No no no, it's socially efficient! Don't you see? with a single pri--" "It's unfair!" "Yes, but don't you see--" "IT'S UNFAIR!" right? And while people can understand it in certain contexts, the AIDS drugs context, people say "Yeah, I can kinda see why we need to prevent the reimportation of the at-cost produced AIDS drug back into the United States", it's a much more restricted kind of logic.

So I think as rhetoric, this will not be as successful as the combination of the romantic author story, "I made it out of nothing, so I deserve to own all of it, forever!" and the public goods story, which says "Yes it's good. He needs the incentive. He may be a romantic but he's also a rational economic actor." That story plays, it plays really well. (A friend in a software company told me how he was made to go to wear -- although he normally dressed rather like this -- he was made to wear sandals and a tie-dyed T-shirt when testifying in front of Congress. "They want to see someone creative! Get that suit off!") That does play. This story doesn't play as well. People just think, "It's unfair."

So as rhetoric, it's not as powerful, but as logic, as the felt logic of you the content owner, you the content producer, the tendency to want a network into which surveillance is built, the tendency to want your digital fences, the tendency to want to curtail the challenge that free software and open source peer to peer production present, is particularly strong.

When Microsoft said recently and sort of absurdly that -- what was the quote? "Open source is a threat to the American Way", something like that, right? It was commented -- and I believe in priva -- at first you're going, "What are they talking about? I mean, on some level, you can say, wait a minute, it's my stuff! Why shouldn't I get to decide what terms ...?" This is sort of weird, but if you look at it through the lens of the price discrimination argument, it is a threat. This method of production. the two methods of production, don't mix very well. Open source tends to undermine the very ecology in which the price discrimination strategy can flourish.

So, what do we need?

More sustained, serious, thoughtful economic and legal work, and Professor Cornish and some of the other people at this conference have already done very path-breaking innovative work which tries to explain how things really work, and what kinds of régimes are possible. We actually need a little bit more scepticism about this potentially valuable subsidy programme called intellectual property, this granting of legal monopolies in this neo-liberal world. We need to apply the same scepticism towards it towards environmental protection and helping children. You know, actually say "Is it good? Let's have some empirical evidence; we need actual studies."

But above all, we need to really be aware of the danger that we might end up building the digital networked economy, and the digital networked cultural space, around a business plan constructed around the needs of a content provider with a major monopoly, because that would truly be a tragedy and a wasted opportunity.

Thanks very much.