Help Create An 'Innovation Agenda' You Wish Politicians Would Support

Question

In the last few months it's become clear that it's no longer acceptable for politicians to "not get" the internet. The internet has become such a key part of our lives that anyone who is trying to regulate it without understanding it doesn't deserve to be in office. Of course, there are some politicians who really do want to do the right thing, and it's time to help them out. In association with Engine Advocacy, we're looking to do a little "crowdsourcing" around what an internet "Innovation Agenda" should look like for any politician in 2012. We're starting with this basic principle:

New businesses are the key to job creation and economic growth, and the Internet is one of the most fertile platforms for new businesses ever established. 

We believe deeply in the value of decentralized, emergent, bottom-up innovation, and we want to shape public policies that will allow it to flourish.

From there, we have a list of twelve topics that we think are important -- but we want your input.  Below this post, we're also posting those initial twelve topics, with each one as a separate comment, so you can vote them up and down. If you want to really participate, you can do three separate things (and, yes, your Techdirt login works here too):

1. Suggest your own topics that should be part of an innovation agenda by responding to this main post.
2. Vote on existing topics to show which ones are more important... and which ones are less important.
3. Comment on the existing topics to provide feedback or suggest ways to improve them.

Please help us shape a comprehensive Innovation Agenda for 2012. Engine Advocacy is working closely with the internet community and helping give them a voice in DC, and this is one way to take part, as your suggestions may help shape what politicians are hearing.

Answer 1

Open Internet: The Internet's fundamental openness allows innovations to be implemented by users of the network, rather than only by network operators. Maintaining an open internet is vital to fostering creative innovation.

Comments

@mmasnick More concretely:

* Net neutrality - ISPs should not filter packets by content

* No national firewall or censorship

* No "domain seizures"

* No limits on linking, even to infringing or criminal content (it is not illegal to publish a book explaining how to do things which are illegal, and it shouldn't be illegal to link to a document, even if the document is infringing or illegal).

* Agreements between companies to censor content should fall under anti-trust legislation. Such contracts that exist should not be legal or binding.

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@terryhancock

Net neutrality means 100 different things to 100 people...unfortunately.   I see no problem with filtering packets by content if by "content" we mean "VOIP vs. email", where clearly VOIP traffic (realtime) should take precedence over SMTP (not realtime).  But I see a problem with filtering by content if by "content" we "VOIP from ATT" vs. "VOIP from Sprint".

The former is "reasonably prudent network operation", the latter is clearly anti-competitive and disruptive to the Internet's basic principles.  One of the many problems is distinguishing one from the other, which, absent administrative access to the implementing devices, can only be discerned by careful experiment.

But this issue is tied to another: bandwidth.  Filtering packets by content (the first way listed above) to meet QoS (quality of service) standards is only necessary if there isn't enough bandwidth: given a surplus, there's no reason to bother with it, as it's just wasted overhead.

So: why isn't there enough bandwidth?  Part of the reason is telco failure to lay fiber as promised.   Part of the reason is underengineering.  Part of the reason is overprovisioning.  And part of the reason is copyright: there's really no reason why my next-door neighbor and I, separated by 50 feet, need to BOTH download the Netflix movie we're going to watch tonight.  We could cut the bandwidth needed in half if only there was a method for us to share a single downloaded copy -- which there are, of course, but not legally.

It's been said that "the best QoS is a big fat pipe", which is true -- but I'd add "...with a large cache on the end of it".

To put all of this another way: because telcos/cablecos have made bandwidth an artificially scarce commodity, and because content providers have made content a scarce commodity, we have issues.  Undo both those choices and the problem (mostly) goes away.

Answer 2

Copyright: New distribution technologies are making it easier for anyone to reach a broad audience and make money. Copyright needs to allow these new technologies and new creators to succeed.

Comments

@mmasnick REAL copyright reform for the Internet age, has to mean at least:

Decriminalization of copyright infringement. Copying really isn't theft, and shouldn't be treated as such. Statutory penalties in as much as they still exist, should be reduced to be similar to other "unpaid service" violations.

Recourse for abusers of takedown systems -- copyfraud _is_ theft and should be treated as a serious offense.

"Fair use" should be extended to include things like non-commercial file-sharing. I would suggest that everything allowed by the Creative Commons Non-Commercial No-Derivatives license should fall under "fair use" in future systems. No violation should exist unless there is clear evidence of commercial use or intent.

Transformative uses -- i.e. sampling -- should also fall under "fair use". Almost all song samples and visual collages should be legitimate. Most fan remixed video should also fall under this category. In any case, specific guidelines should be published which ensure safety for remixers.

Respect for the value of the public domain should be restored -- the existing principle of favoring any copyright claim, no matter how small, over the pubic's interest in a work should be eliminated in favor of a pro-public domain policies.

"Accidental" transformative copies -- such as overheard music in videos or copyright public art in photographs -- should have no copyright protection and should fall under fair use.

The registration requirement for copyrights should be re-instated, along with a "copyright tax" (or fee) and frequent re-registration. Karl Fogel suggested an excellent solution for evaluating a copyright tax ( http://questioncopyright.org/shorter_better ): the copyright holder sets the value of the work at whatever they want -- this then simultaneously sets the maximum infringement penalty, statutory buy-out price, and the amount taxed. This creates an incentive to neither over-value nor under-value the work.

No retro-actively-lenghtened copyright should be recognized (and existing retro-active extensions should be repealed). The copyright duration which applies for a work should be a strict function of the law that existed at the time of creation (it's unfortunate that this would leave in place long-duration copyrights made under the present regime, but it would restore US works from the 1940s and 1950s to the public domain as originally promised.

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@terryhancock makes an excellent beginning.

Let me add/augment the following suggestions for discussion.

First, and foremost: is copyright even necessary?  Given that its original intended purpose is to benefit the public-at-large, not content creators, should we not ask whether the public is best served by maintaining it (albeit with many reforms and changes) or by doing away with it entirely?  Wouldn't this moment in our history, when we are seeing a number of transformative forces at work, be a good time to have a serious conversation on this point -- rather that just tacitly assuming that continuing copyright is the only available option?

Second, copyright as currently implemented is binary in nature...and that may not be the best option.  Perhaps we need something (which may or may not be called "copyright") that associates different qualities with a work for different periods of time.  For example: "authorship" might be associated "forever", as we have a long tradition of crediting people for their work and disapprove ("plagiarism") when others claim it as their own.  But "royalties" might be associated for some shorter period of time; similarly for "distribution".  In other words, I propose examining just what (current) copyright confers and -- perhaps -- decoupling those items from each other.

Third, technological measures designed to prevent copying must be banned -- not just on copyright grounds, but because these measures (e.g., DRM) create insolvable security issues.  Even if we agree fervently that copying is bad (and we don't), stopping it cannot come at the cost of undermining the already-rickety security infrastructure that barely protects us now.

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@tempesfugit It's a good discussion to have ("abolish" vs "reform" copyright), but I think people have gotten a little overly-enthusiastic about abolition because they're afraid of the monster copyright has become.

In a much-reduced form (more like the original US copyright), copyright can be seen as a pretty-sensible state-supported collective patronage system in itself. It has a major advantage over pre-production patronage systems in that it allows the buyer to wait to see that something is actually produced before paying for it, and it does provide "a reason to buy" of sorts.

But my main reason for supporting the "reform" position is just conservativism -- it would be less of a shock to our economy because it would allow old business models to co-exist with new ones (new works can use free-licenses with or without copyleft).

It is my belief that new models will favor some types of expression above others, and that abolishing the copyright model will probably be devastating to some genres or media.

To me, this is sufficient reason to suggest a "live and let live" strategy in which some form of copyright is allowed to persist. I feel we should resist the urge to lash out at the existing industry in retaliation, even though I would certainly understand the feeling behind such a backlash.

On the other hand, a reform strategy does have one major weakness: it can be corrupted too easily. Standing on the slippery slope, it's much easier to get pushed right back into the status quo during debate in Congress. An abolition strategy has a crispness to it that is attractive politically.

However, abolition carries another risk: if it is unsuccessful in the short run (as it almost certainly would be -- the economy would go through a substantial shock during the transition), then it could trigger a backlash movement to reinstate copyright more or less exactly as it was ("Ha ha! Your policy failed! How's that 'hope and change' thing working for you now?"). If you frame the debate as "either/or" the other side may play into that and you'll then have a much harder time arguing for a "happy middle" afterwards.

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@mmasnick Copyright needs to be eliminated. Copyright has never supported the little guy; it only supports those with money. And lawyers. Get rid of it completely.

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@Terry and Tempes

You both bring up great points.  As attractive as the total elimination of copyright would be, I do think that the "beast" it has become helps provide the structure for that view and truly overshadows copyright's original purpose.  Granting a limited monopoly to the content owner to ensure that they control who profits from the work is essential.  The key words in that sentence were "limited" and "profits".  If someone is using copyrighted material for non-commercial uses, they should be free to use it as they please.  That should be the new definition of fair use.  This would solve most of the problems with the current system.  

"Limited" must be something reasonable, and it could be different for the various areas that copyright applies to.  It's difficult to say without data, but it may be prudent to provide different terms for different genres based on the useful lifetime of a product.  The best example of this come from patent law, and more specifically software patents (which do need to be abolished altogether).  By the time the patent expires the useful life of the IP has probably been over for at least a decade.  I would think that 10-20 years may be reasonable for copyright, but what we have now is a perversion of it's original intent.  Also, the international treaties I believe limit copyright to a minimum term of 50 years, and even that would be a start in the right direction.

Tempes, I really like your idea of changing the binary nature of copyright to separate the different aspects of the rights granted by it.  I've never seen anyone suggest something along these lines, but it makes a lot of sense.  If there is anything you could point to that would expand on this idea, I'd love to read it.

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@frankryzzo The biggest problem with copyright is that it relies on a person judgment on what is protected and what isn't. And as time goes by, more and more is included in what is protected. Even if you reset the clock, in 25 or 50 years we'll be right back where we are now. The best thing to do is to get rid of it.

And the purpose of any monopoly is to benefit society. Governments do not have the authority to grant them just so a tiny majority can profit. They have to show beyond a reasonable doubt that society benefits and must repeated do so whenever there is game-changing technology.

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@shawnhcorey I read that as 'Congress should be eliminated'

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@terryhancock I like the point about copyfraud, and I think it could be a great way to protect the public domain. Obviously, where someone alleges infringement that did not take place, they should be liable. But what if there was also another category, something like 'slander of title' that was when someone asserted copyright over material in the public domain? What if any citizen could sue those who asserted such copyrights, get an injunction, and collect damages to be split between the plaintiff and a fund to advance access to public domain works? I think that could be an incentive for anti-trolls, who saw that they could sue pretty big targets with deep pockets (think Steamboat Willie). It might also force people in the content business to see copyright as a two-edged sword, rather than defaulting to asserting it.

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one issue that especially needs to be addressed in copyright reform is translations...there is no reason for people across the world to be locked out of information simply because the copyright owner sees no incentive to authorize translations (and I'm mostly talking about scholarly

Answer 3

Patents: As currently permitted, patents and software patents in particular, are a tax on innovation. Patent reform is crucial to enabling innovation instead of empowering trolls.

Comments

@mmasnick Non Practicing Entity reform is a must. Patents should either be revoked or heavily taxed if not put into practice within a reasonable amount of time. Something about "Progress of Science the useful Arts".

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@mmasnick Software patents were always a dumb idea, and they should be abolished entirely. This would simply restore the 1980s-era policy.

I actually think all patents have outlived their usefulness, but abolishing software patents would be a useful step, and probably easier to sell than abolishing all patents.

On the other hand patents (or any form of IP) on genetically modified lifeforms are a nightmarish path to a dystopian future and should also be banned, albeit for different reasons.

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@mmasnick There are too many bad patents out there right now. There needs to be a better way to overturn bad patents and stop them from stifling progress. Come up with a set of rules by which a patent can be overturned. For example "Prior Art": If someone submits prior art that would invalidate a patent, the legitimacy of the patent would need to be reviewed before it could be enforced.

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@terryhancock  100 on the idea of dismantling software patents entirely.  It's an absurd concept and one that -- as we've seen from the "mobile phone patent thicket" -- is flushing huge amounts of money down the drain while inflating  the price of innovation (and in some cases, stifling it entirely).

Equally absurd is the concept of patenting nature, e.g., genomes.  

All patents should be reviewable by the public -- first.  That is, the USPTO should operate a mailing list/web site/etc. that subjects all patents to scrutiny by the public, and that review should be mandatory prior to any done by the USPTO itself.  Any patent applications that fail to make their case to the public (which will, by the way, require an intelligible description) will be rejected.

That part of the process, and USPTO review, must focus heavily on prior art and on benefit to society.  (There are far too many patents being granted for "inventions" that aren't.)

And as I said in my comments with copyright, perhaps the concept of "patent" should be decomposed into something which grants different kinds of privileges for different periods of time.  As it stands now, it's very binary, and it doesn't appear that approach is working any more.

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@mmasnick I think completely killing off patents (or even just software patents) is a difficult fight. But there are lower hanging fruit that might be worth pursuing.

You've brought this up before, but the independent invention defense is a great idea. Still difficult to get through but a good reach goal.

Other possibilities:

- A more adversarial patent approval process. Let any potential infringer appeal the approval of a patent. This might run into constitutional concerns, as parties to a federal court case must face a genuine "case or controversy", but worth looking into.

- Along the same lines, if you appeal a USPTO decision not to grant a patent to court, and you lose, you have to pay the USPTO's legal fees. No exceptions. This might make the USPTO less wary about fighting parties in court.

- Clarifying language about what's "obvious". Even if the language just highlights the existing law, it can frame the issue for the USPTO and courts. For example, something like "discovering a non-obvious market does not imply that any machine or process that serves that market is non-obvious."

- Allow the USPTO to consider the actual time and cost of research expenditures in deciding whether to grant a patent

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@fongandrew I don't think abolishing software patents would necessarily be that hard to sell. Several major technology companies have spoken out against software patents.

For the most part, the majors collect software patents as a measure for defending against software patents (i.e. it's an arms race). Disarming them all at once by abolishing software patents categorically might well receive wide support.

There are a few exceptions (e.g. Microsoft), but most of the other supporters of software patents are clearly "patent trolls" and could be discredited on that basis.

Plus, as I mentioned above, this would simply restore an earlier position of the USPTO, which held that software was simply applied mathematics, and therefore categorically non-patentable. And that was, of course, a boom time for software -- demonstrating the reality that software patents are not needed to promote innovation.

Meanwhile, Europe has successfully resisted the introduction of software patents for years, and they are certainly not suffering some kind of dearth of progress in software as a result. Add to that the ample examples of software patents impeding legitimate progress and leading to frivolous lawsuits, and I think you can make a pretty solid case for abolishing software patents entirely.

I think the really hard fight would be defeating pharmaceutical patents -- the issues there are much muddier.

Answer 4

Intermediary Liability Limitations: Limitations on intermediary liability play a crucial role on the Internet's growth. Requiring services to monitor every piece of content for legal violations would be bad for innovation, free speech, and privacy.

Comments

@mmasnick Bring back the safe-harbors!

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@terryhancock well, we still have safe harbors... though there are attempts to eat away at them, and I'd argue they should actually go in the other direction and be strengthened...

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@mmasnick The biggest problem of our current safe harbors is that due process is still ignored within it. It is still unbalanced in favor of the accuser while the accused has little recourse. We need to replace the notice and takedown process with something more balanced.

For one, we could replace it with a pure notice and notice system. Under this, the accuser gets to send its notice to the accused. The accused can respond with why it feels to not be infringing. Then it proceed to court or however else the accuser wants to move forward.

We could also do something a little different in which the video/song/whatever is still taken down but is added back as soon as the accused provides their reasoning for why it is not infringing.

The main goal is to allow the supposed infringing content to remain until a court proclaims otherwise.

As long as the site that hosts the content continues to play a mediator role under the law, they should have no liability.

Answer 5

Competition: Innovation is driven by competition in the market, and policies should reflect the desire for increasing competition, rather than limiting competition.

Comments

@mmasnick Sounds nice, but means nothing?

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@terryhancock I think this one is getting to the core of regulatory capture. We need to review all regulations and look to eliminate methods of abuse that could limit competition.

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@ezacharyk Regulatory capture is kind of systemic in government, but there might be some ways to address it.

One basic way would be to create prohibitions on revolving doors. The RIAA should not be allowed to reward Mitch Glazier for inserting a work-for-hire clause in the dead of night. Likewise, an FCC commissioner should not be working for one of the companies that was recently before her.

Another would be to centralize redundancies among different agencies. Agencies naturally have an incentive to perpetuate their existence, so downsizing dedicated staff for each agency would counter that tendency, at least a little.

Finally, there should be some way to increase the number of public interest folks on regulatory bodies. A lot of the "experts" end up having ties to existing industry players, i.e. very little incentive to encourage insurgents.

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@mmasnick I like how open eneded this is and feel it's rather important.  Is it necessary though to spell out examples.  For instance we know that not having enough competition in the broadband market is stifiling innovation and frustrating customers.  There is not a broadband company out there that scores high on customer service and yet they all rake in mountains of cash.  Since we are all tied to their high prices, low speeds and awful customer service we put up with it.  Increased competition would improve that market and in turn improve innovation.  To think that 10 years ago streaming video was a joke but now common place is a great example.  Imagine what else could be done with greater speeds and more reliability.

Answer 6

Free Flow of Information & Trade: In the information age, a flourishing marketplace of ideas is paramount, not just to our free society, but to the economy. In turn, censorship barriers at home and abroad must now be evaluated as economic barriers.

Answer 7

Education: America needs to make a high quality education affordable, and simply throwing more money at skyrocketing tuitions isn't going to cut it. New innovations - like online learning and open educational resources - can help change the economics of education and complement other learning environments.

Comments

@mmasnick I think this is not so much a policy decision, at least not at the federal level. Making an open environment on the Internet will enable existing initiatives in education to succeed.

Possibly a major focus should be on opening up Internet access at public schools -- at present, most high-school students operate behind oppressive content firewalls (many schools block Wikipedia, for example!).

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@mmasnick Education is THE priority.  It is, without question, absolutely the best investment the nation (and the world) can make.

It should be United States policy that all education in the sciences and liberal arts, engineering and medicine, law and trades will be paid for.  All of it.  That means funding every geology major, everyone seeking an MA in Italian, everyone working on a PhD in chemistry, etc.  It also means funding everyone learning HTML, or woodworking, or plumbing, or medical coding.

Yes, that's expensive.  So is war: Brown University's "Costs of War" study puts the cost of the Iraq War at $3.2-4 trillion dollars.  That's enough for 12M $250K scholarships.

How much better off would we be as a country today if we'd spent it that way?  How much more competitive would we be?  How many more people would have jobs?   How many people could we have lifted out of poverty?  How much crime could we have prevented?

There's no question that if we spent that much money, some of it would be wasted -- it'd be impossible for it not be.  But if we must accept that waste, then at least let it be wasted in a positive effort to educate our citizens, rather than in a negative effort that achieves, in the end, nothing.

(Edit: I posted this as a reply to "Education", but it showed up under "Markets and Capital".  This edit shows it back under "Education".   I have no idea where it'll end up once I save this change.)

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@mmasnick Decouple academic certification (degrees) and academic instruction (classes).

I should be able to go through some accreditation process that signals to employers I am as qualified to take on a job as any other person with a four-year degree. And without having to spend 5-6 figures on a four-year college education.

If the accreditation and teaching components were decoupled, that would invite more competition and experimentation in the teaching market.

Answer 8

Spectrum Reform: More spectrum needs to be made available for both licensed and unlicensed uses, in ways that new innovators can take advantage of.

Comments

@mmasnick Network communications backbones need massive reforms. Not only do we need to focus on the wireless spectrum, but also wired connections. There is no reason why two competing FiOS providers should have to lay separate but redundant fiber optics networks. We need to move to a system of shared cabling.

As for wireless spectrum, we need to stop being so adverse to "harm" to other wireless devices. The recent problem with GPS shows just how stupid it is to worry about harm when the problem is more often the older and inefficient devices. Rather than killing the project that "interfered" with GPS, we should have forced GPS providers to stop broadcasting and capturing signals so haphazardly.

The same can be said about whitespace devices. They should be allowed. There is no reason to not let all that wireless spectrum go unused and wasted because someone in the future might possibly consider the idea of starting up a network television station. The internet is quickly making such a move costly and unprofitable. Why waste the spectrum for that?

Answer 9

Broadband: The level of innovation enabled increases as more people have access to faster data pipes. Policy should reflect incentives for expanding both access and bandwidth.

 

Comments

@mmasnick Again, I think the market will solve this as long as government doesn't get in the way (or grant monopolies!).

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@terryhancock Right now the government is in the way. Too many municipalities have restrictive licensing deals with a single or possibly two ISPs. Other areas have massive regulatory hurdles to pass in order to lay the network needed to expand.

Add to this that if ISP1 lays a fiber network in a city, it has complete control over that network and no other service provider can use it. While this may seem fair, it actually makes it redundant for a second ISP to come in wanting to offer a fiber network. We need to move to a centrally owned/controlled network that leases out its use to multiple ISPs and other services.

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@ezacharyk
Yes - "the information super-highway" should be like our highways. It's basic shared infrastructure necessary for our economy to work - the government should fund the outlay and rent it out afterwards.

Answer 10

Access to Markets & Capital:  As innovation and investment are now increasingly decentralized, it's critical to evaluate the fit of regulations crafted for an industrial economy and large enterprises.

Comments

@mmasnick Legislation to allow crowdfunding of startups would be a nice boost for innovation. We must fight those lobbying against it.

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@musicalmissionary Clearly crowd-funding start-ups is a good idea, but I'm under the impression that it is legal to do so now. What legislation is needed?

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@terryhancock If you are referring to crowdfunded donations a la Kickstarter, that's obviously straightforward under current law. But that's restricted to donations, so the supporters only get warm fuzzies and a gift in return (no slight intended).

Applying this model to startups means donors become investors who take actual equity stakes in the startups. While this is currently doable, it requires costly registration fees with the SEC along with other associated regulatory expenses and restrictive limitations on the amounts that can be raised. So the legislation needed would make the process much easier and applicable to the startup context in the hopes of creating a Kickstarter for startups.

Something similar did exist until very recently. ProFounder.com recently folded because the hurdles are still too high for what they tried to implement.
Also see http://blog.profounder.com/2012/02/17/profounder-shutting-down/ and http://smallbusiness.jdsupra.com/post/16473665186/crowdfunding-and-startup-capital

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@musicalmissionary Okay. But that's just investing, which is legal, albeit more regulated (and there are some good reasons for the regulations, as there are a lot of scams).

Crowd-funding through Kickstarter or similar sites can be like donations, but more often it resembles pre-sales, where you are essentially customer-financed.

I am actually a bit worried about crowd-funding in that we have not yet had a big scandal with a fraudulent or reneging project leading to a lawsuit for failure to perform -- but it's bound to happen eventually. Once something like that happens, there is liable to be a serious backlash and a chilling of support for crowd-source projects, which would be really unfortunate.

In the movie industry, they have "completion bonds" to protect investors from this kind of scam, but no protection exists for backers in crowd-funded projects. It may become a requirement in time (but would obviously be an extra overhead cost).

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I'm not pretending to have all the answers. Thankfully, much smarter people than I have put their minds to this and there is currently legislation before Congress which would open up crowdfunding to the startup community in more compelling ways than Kickstarter's donation model. Unfortunately, as with most battles between new and old ideas, protectors of the old have deeper pockets and more powerful friends to help keep the old ideas entrenched as long as possible.

Sure, scams are always possible. But the legislation has provisions to limit them and their potential impact. And over time, the Internet will work its magic to establish trusted networks which vet potential investments and shore up the system into a serious force for innovation for our economy.