I just sent this out in an email to a legal thinker I really admire, Timothy Wu, and then thought, why not share it with the world (that, like me until a minute ago, doesn’t know this blog exists)? Check him out before you do this. http://www.timwu.org/
I had an idea kernel a few weeks ago that I need to talk through, that I want to do something with. Until I’ve talked to some smart legal minds, I can only think of it as a thought experiment full of problems but, nevertheless, leaning toward a world in which copyright means the right to copy, and where the public commons can go on the offensive.
Creative commons is a first step but is only that. It gives the commons teeth to defend itself but there is still no incentive to actively stake out, or system to account for, the boundaries of a larger commons. We need a better way to shore up and marshal about the immense value of shared creative work in our present-day marketplace–a way to appreciate and account for the economic value of network effects.
So what about a payment system that does exactly that: rewards creators for simply the act of securing their work in the commons and punishes the misuse and for-profit expropriation of that work by private hands. And while we’re at it, is there a way for aggressive lawyers to make a buck defending the commons? (Otherwise, of course, the default for young lawyers with debate is to enlist with the side that doesn’t share.)
Create an index of creators who commit (at least a large portion of) their work to the commons, perhaps through a kind of contract, and thus become part shareholders in it. If private actors grab something from the commons, and refuse to return it, why not let commons lawyers take them to court, sue for the damages done to the commons (i.e., the sum value of that cost of that material no longer being available to everyone in the commons, which would not be insubstantial) plus court fees. The lawyers get their fees, and the damages get distributed in a kind of lottery system in which every commons shareholder–every person who has committed their work to everyone else–could receive damage payments. (How this would work–be it 100 random shareholder each receiving 100th of the damages, or a weighting system which incentives those who commit valuable work to the commons, or every shareholder receiving two cents–I cannot yet say. I think weighting would be very problematic.) The workings of the lottery system itself would best be locked open-source and even subjected to scrutiny by external parties, such as a private watch-dog groups, in whose self-interest it is to find flaws and abuses in the distribution of damages.
Imagine, for an unlikely first instance, if Disney decided to eventually become a commons shareholder, they would contribute huge amounts of value to the commons, and make it that much more valuable. They could even make more from damages distribution, to say nothing about the benefits their much more profitable accessory industries would make from public relations–than they do from royalties. The thought is that if damages can be calculated according to the network effects value of the loss of material seized from the public commons, then everyone–even the most pettily pecuniary among us, from private corporations to attack lawyers–would have some incentive to participate in a marketplace, a world, whose core values reward participation, not possession.
There’s more holes than anything else, which is why I’m glad as always for any thoughts from those who may know the world of law and economics better than I.