The Future of Content Pt 2 follow up

Martin has now responded to my earlier piece and Patrick McAndrew has followed through also with part 3 (beta).

I just wanted to add a few comments initially relating to Martin's piece. He says

But equally they [governments like China and Saudia Arabia] have really struggled to control information. Sure they’ve tried and had some success but this has had more to do with the immaturity of communication technologies, not the increasing ability of governments to censor information. The general trend is towards more freedom of information and as mobile devices and broadcasting/networking equipment become more powerful this will only increase.

I'm tempted to get into a long note here about civil rights and the Net but I'll restrict it to a three points. Totalitarian regimes rule through fear - brutalise a sufficient proportion of the population and the rest fall into line. They don't require total control, just enough. If the great firewall of China is 80% effective (and regular readers of this blog will know how much I detest filter software) it is effective enough.

The second point is that we basically have "zero privacy" (as Scott MacNealy said) on the Net. The way to tackle totalitarian regimes is to not be afraid (as is the way to tackle terrorism but now I'm getting even more side-tracked) but this is a risky business in these places, involving threat to life and liberty. Dissident bloggers are relatively easy to find - ISPs and tech cos are the choke points with the necessary information to hand over to the authorities - and as Cardinal Richelieu said, he only needed "six lines written by the most honest man" to present sufficient evidence to hang him. I wrote on this blog last year

Yahoo! chief, Jerry Yang, "feels horrible" that Yahoo! helped the Chinese authorities to jail journalists. When asked about the arrests he said they "are never things you go home and feel good about. We feel horrible about that...We have no way of preventing that beforehand....If you want to do business there you have to comply."

Badly damaging someone's life is merely the price of doing business. The heart of the business process is amoral hence the key rule is caveat emptor, where the 'emptor' encompasses everyone who comes into contact with that business in any way. It's kind of ironic that doing business fundamentally depends simultaneously on trust and lack of trust.

I doubt Mr Yang will get much sympathy over his horrible feelings but my question would be at what point does he believe the price of compliance becomes too high?

Thirdly, remember a few years ago when a handful of fuel protesters with mobile phones blockaded fuel depots and brought the UK to a grinding halt? Well the law has been changed and if they try it again they could very well get picked up by the police and disappear for 28 days (or longer if the government follow through with intentions to extend the term of detention without charge).

Moving on to the commerce end of things, Martin says

Sure the respective industries want to control it, but the point is they can’t anymore. This is because technologically they’ll always be beaten, and also because the online world allows new market players who will offer an alternative, often a free one. They have to adapt or die – look at photography: Kodak might have wanted to control the print process but ultimately digital cameras and Flickr meant they couldn’t.

Absolutely spot on - commerce has to adapt to the new technological context. Google didn't exist a little over a decade ago and it's almost hard to believe Microsoft is a young a company as it is. And sure, the established commercial landscape and players in any market changes over time but that amoral focus on the bottom line doesn't change and the commercial pressures to stick up barriers to a new technological contexts, just long enough to underpin, nurture, grow profit margins and leverage power in the new reality, never goes away.

Martin also points out that just because governments and commerce want to control the Net doesn't mean they can.

I heard Robert Cailliau, a colleague of Tim Berners-Lee, once argue that we were reaching the edges of our understanding of the complexity in the net. He joked that maybe it was using us to get built.

Since I've just published a book, one of the underlying themes of which is that we are pretty poor as a species at deploying, securing, controlling and regulating large information systems, I can only agree wholeheartedly with Martin and Robert Cailliau on this one.

But again what you've got to understand here - and it is difficult to emphasise this sometimes without sounding like a raving loonatic - is that the people (and their lawyers and the politicians they hold undue influence over) who run the content companies and other IP based industries, live in a completely different universe to the rest of us, with regard to their perspective on what the law ought to be. And they have the commercial, financial and political clout to ensure it is shaped in their favour. (Take a look at Jessica Litman's and Peter Drahos's terrific books Digital Copyright and Information Feudalism for engaging narratives on how these processes unfold in the US and international arenas)

The late Jack Valenti of the MPAA said the VCR relationship to the US movie industry was like that of the Boston strangler to a woman home alone. Jamie Kellner head of Turner Broadcasting believes TV viewers have a contract with the network to "watch the spots [adverts]" and that recording programmes for later viewing and then fast forwarding through the ads is theft. Why you you think the fast forward button on my DVD player is disabled when I want to skip those copyright notices at the beginning of a DVD? The US Movie industry run the DVD Content Control Association (DVDCCA) which licences tech companies to manufacture approved DVD machines with approved DRM mechanisms to play their DVDs.

I don't see how digital content shrinkwrap and clickwrap boilerplate licences, whether for software or any other product, which effectively say (and I paraphrase)-

"We cannot ever, under any circumstances, be held liable, even if proven beyond any reasonable doubt to be totally negligent when our product destroyed your life."

- could withstand appropriate scrutiny under the Unfair Contract Terms Act of 1977 or of the whole branch of civil liability tort law, which applies to normal products. But they do and courts repeatedly uphold them and we continue to buy generation after generation of substandardly secured software, for example, under purchasing conditions totally stacked in favour of the vendors.

The regulatory instruments and frameworks surrounding modern digital technologies are quite surreal. Technologists and educators need to be a lot more tuned into them than we are, if we are firstly to begin to understand them and secondly start to do something about imposing some semblance of reality on them in order to at least give Martin's vision of an accessible, sustainable, open content future a small glint of a fighting chance.