up|next: Proposing a new paradigm for museums and libraries

This note continues my thoughts elsewhere in this space on copyright, content, and technology. My few faithful readers will recall that a few years back I wrote a blog article that primarily considered the changing role of museums. In that essay, I concluded that museums (and arguably libraries as well) should:

1. Be an authority:
* seek out authors and remain vigilant about properly attributing all sources;
* keep primary source material alive and digital so that it can be referenced;
* build semantic widgets to accurately and efficiently tag their "good stuff;"
2. Be a filter:
* dedicate resources to portal activity to identify others' "good stuff;" and
3. Be a good citizen:
* participate in discussions to create statutory royalty reservoirs

I believe in collaboration and openness in all that educators and academics do professionally, from wikispaces to promoting and hosting development platforms for multi-use open source software to finances. I think that today's digital environment requires us to think about information/ideas/content more as virtual and intangible things than the ephemeral material forms of expression which may embody them and would therefore propose that we have at least two major points of focus.

The first focus should be on the promotion of reasoned discussion, whether by increasing knowledge through novel, peer-reviewed research; by asserting the credibility and validity of others' data and promulgating same; or by developing and providing trustworthy, safe places (such as this wiki) and means (both through legal constructs like copyright law as well as technologies like OMEKA or Synchrotext) for people to access this information, juxtapose/associate it with other concepts, internalize and/or analyze these, and then exchange views with one another.

The second focus should be on preservation and validation of the primary source material that lies at the foundation of this idea marketplace and renders it epistemologically sound. This preservation would include not only traditional provenance research and conservation of physical objects, but also their ongoing digitization, storage, and migration. I think this work would include (as I believe it already includes) collaboration and consensus on international standards and protocols for not only acceptable metadata/semantic data but also file formats and reproduction/resolution scales.

If we accept these two areas of focus -- one on assuring and creating a fair, safe marketplace for idea gathering and exchange, the other for establishing a reliable repository for the content itself (and I think commercial publishing is headed in that direction) -- then is the distinction between museum and library still meaningful? Independently, I think the strength of any museum or library lies in its expertise and source of authority. Yet collectively I think we will gain the most by sharing development of and responsibility over mastering both the ephemeral and tangible aspects of knowledge that is the basis for our respective existence.

Martin Gomez , City Librarian at the Los Angeles Public Library, has cited OCLC studies showing the public more interested in expedient access to content than authoritative access to content. However, I think libraries and museums are in control of their own respective brands and what they deliver. There's no reason users cannot get both -- an expedient place to access "good" content (irrespective of format or length) that through its services and imprimatur assures this content is accurately sourced and attributed. Further to this vision of a library as community “third space,” I agree that the future of libraries should be envisioned in a manner separate from their current ties to old technology (i.e., printing press and CDs as opposed to print-on-demand, e-books, and MP3s). But what would this look like? I propose a new model for maintaining a single, vast central (largely digital, so really dispersed) repository and converting independent local libraries into branches that can tap into this central core as portals, third spaces, and integral maintainers of our collective knowledge infrastructure.

When source material is digitally generated, stored, searchable, and downloadable, doesn't it make more sense to have a centralized repository (like the Library of Congress) handling digital preservation and distribution protocols serving to/through existing infrastructure of brick & mortar local outlet branches than the arbitrary hodgepodge we have now that favors urbanites over would be rural users? I wonder what it would cost to support/transition to this on a national scale as against the current tax base for public libraries? Funding would need to cover not only upkeep of central + branches + storage + internet connectivity/outlets but also micropayments to creators based on usage (a la ASCAP/BMI/SESAC). I’d love to see someone present objective research findings on this, though my intuition is that revenues would offset costs. What’s required is legislative leadership to make this happen.

Local tax dollars already go to support local branches, as does federal funding for library systems in general (IMLS, NAS funding, LOC, NIH, etc.). Economies of scale and the metadata and the ongoing efforts within the digitization standards community both suggest savings inherent in a centralized knowledge bank (so to speak, it probably wouldn't be centrally stored, just centrally managed and overseen). Copyright protection and the public domain have long been matters of federal (and international) law. I'm starting to think these issues are in reality less a matter of centralized consolidation and control (digital copying is almost impossible to staunch now) than finding the most efficient and effective means of retention and distribution. Write once, serve many.

What's more, changing our cultural paradigm for information development, storage, and retrieval might even benefit those in (presently) underserved areas. Current brick and mortar library branches could continue (and possibly increase) the technology access functions they currently perform (among the other valuable services they provide), and with print-on-demand units, could even make the occasional or rare print material available for those who prefer to carry things out. Policy decisions would have to be made about what materials might be made available (should the library carry movies, for example, or a Netflix subscription?) and the availability of viable competing business models would surely be part of the debate (even with a micropayment royalty structure, would libraries unfairly compete with rental services?) but those are discussions that are already ongoing.

I respect those who make the argument that museums should not thus be lumped in with libraries, since museums are also content creators and interpreters, not just content repositories/users. I agree that this is an important distinction, but I disagree that it is a meaningfully generalizable one. How should we regard organizations like presidential libraries who maintain in-house experts not just to collect, preserve, and promote access to information but also to cultivate and publish new research? How should we regard small, local, but communally-funded children's museums whose content is limited to manipulation of material objects, a modest library of Seuss and Szieska, and coffee bar cultural events targeting parents of young children? I’d argue that these distinctions are more about individual mission, expertise, and resources than about the authority, credibility, and promulgation of knowledge and culture which I think inherent in the branding of education-driven institutions. Nor am I concerned about the obsolescence of professional training in library sciences or museum studies, as I know from my own experience as a Johns Hopkins instructor that appropriate programs of study can be crafted to fit any professional paradigm. (That is to say, if we build it, they will learn.)

But back to my central point in favor of redefining our paradigm of museums and libraries to better account for what I see as 21st century digital reality. By removing any ongoing independent responsibility to acquire, track, or maintain a (digital) collection, the content itself would be further democratized. This, I think, renders it cost-effective for more local branches or depots to be built in remote or rural locations. I ran these ideas past Rob Billingsley at the Smithsonian American Art Museum (thanks to Facebook), who responded: "Form follows function... Public Libraries have been adapting with Bill Gates Computer Centers, broader reference sources (Internet) to answer visitor questions, loaning books on CDs and DVDs, online training, filling in the digital divides, etc. No reason for them not to continue on that path, but there is a need to go pro-active, not "build it and they will come."

Yes! Library and museum directors, are you listening? Our patrons will adapt and in fact adopt that which makes their access to content easier. For example, we are already seeing different browsing strategies from the shelf-strolling to which many of us have been accustomed. The AI/semantic tagging-enabled suggest functions ("Readers who liked this also liked...") is already much in vogue, and both Google Books and Amazon's "Look Inside!" features allow would-be readers direct experience of the text (to say nothing of music and video streaming).

With mobile smart phone adoption increasing at a global rate and the advent of hybrid technologies like the iPad, Kindle, and Sony Reader (each of which is sort of a weak cell-connected laptop), we are pretty close to this reality. But the legal, funding, and administrative infrastructure would have to be radically overhauled to bring it to light. Are these thoughts about obsolescence and metamorphosis correct or do they show fundamental flaws? If they are apt or a reasonable predictor for one possible and desirable future, might we not try to start imagining and building the framework for this here (on the blogosphere)?

As the previous page cites indicate, this dialogue emerged in the context of an IMLS up|next wiki page in early March, 2010. In the context of this virtual discussion, a member named library4881 who self-identifies as a “Library Director for a very small Community College in eastern Montana” wrote:

Montana has twice the land mass of Wyoming and twice the population. Montana is the 4th largest state in the U.S. with a population of about 1 million; Wyoming has about ½ a million. I bring this up, because we have never had the population to support all that our citizens need. We cannot replicate every library (public, school, academic, special, tribal libraries). The current economic conditions exacerbate the situation. We simply have to share our collections which mean we share our users. …I had used the WorldCat.org site in the past for our students to do research and was impressed with the access we had.

Again, I say all of this because I also read in one of these responses that there was no one place to get ‘all’ of the information (I would reference The Long Tail: Why the Future of business Is Selling Less of More by Chris Anderson) and we would not be able to freely access lesser know[n] titles, lesser know[n] publications, digitized items from local/state/federal: libraries/museums, historical societies, state and federal documents as well as digitized journal articles. I am looking for a solution that would allow our community and state to have access and be able use the social technology that would give them that access.

I think Library4881's points lie at the root of my arguments for considering the cost-effectiveness of a main central repository/multiple delivery paradigm (elaborated elsewhere on this Wiki) for libraries/museums/archive infrastructure over the present one for all digital and digitizable content. Nor would this be inconsistent with those who would wish to preserve the integrity of the current independent museum/library paradigm, since under my proposed scheme the precise nature of delivery/access, curation, maintenance of physical collections, and moderation or cultivation of third space/community interaction could (and by rights ought to) remain for each independent branch to determine as befits the needs and resources of their respective constituencies.

The likening of information to water is not an original one, but is nonetheless a highly apt analogy. We collect, filter, sanitize, and store water in central reservoirs which we then supply via a network of pipes whose usage can be monitored and (if desired) metered to end users to use as they see fit. Would it not be as efficient to treat information the same way, serving to approved libraries, museums, and archives through MAX and Internet2 pipelines for use and redistribution (etc.)? To consider the viability of such a scheme, we should prepare and then review the ROI from repurposing and supplementing the existing architectures that make it possible for us to treat information as a liquid commodity against the ROI from using the same current and evolving technology to perpetuate and perfect our current ways of doing business.

I am not so naïve as to think this a simple matter of reallocating funding and fiat direction. I respect that the complexities of jointly-sharing responsibilities and infrastructure which are now in many cases independently if redundantly maintained, and therefore quantifying the costs and constraints of effecting cooperation (including possible revisions to the existing copyright regime) might in itself be challenging. However, isn’t that what we are asking here? For us to challenge assumptions?

As it happens, half of the research and analysis I suggest (e.g., on the digital preservation/repository side of things) has now been concluded. The National Science Foundation convened a blue ribbon task force to consider the respective costs and benefits of developing a central digital repository. In their recommendations for action, published and discussed earlier this month, they agree that modification of the copyright laws is a good idea. You know you’re onto something when even the NSF is advocating cultural revolution. I have no doubt we will ultimately see this change come to pass, but I see no reason to wait on current trends to shake out a new world informational order. Who will step forward to lead (and not be led by) the coming revolution?

Toward Multi-Museum Multi-Media Collaboration - A Plea for Joint Effort

Join the Synchrotext revolution! My guest blog at the AAM Future of Museums can be found here with a technical addenda (a PDF) here.

Social Media Resources/Collaboration Effort

I've been working with the Federal Web Managers Council on social media to produce a wiki with information of interest to the government and other organizations.

Our charge is to pull together best practices and other resources for the benefit of government agencies. The members of the subcouncil are working hard to develop formal recommendations and guidelines for using these technologies for the Federal Web Managers Council.

These resources are likely to be of interest to everyone, including the museo tech community, so I'm cross posting the link to the wiki here:

http://govsocmed.pbwiki.com/FrontPage

The Arts Need Better Arguments (and these are...)

These are my immediate reactions to Greg Sandow's 2/19/2009 opinion piece, which I posted originally on Facebook.

Sandow's states his principle argument as:

The San Francisco city government is facing a $576 million budget deficit. Cuts have been proposed, some involving public health. For hours at a meeting of the city's Board of Supervisors, there were protests from advocates for homeless people, medical clinics that serve the poor, and many other worthy groups.

So somebody proposed an alternative -- cut funding for the symphony and ballet. The matter hasn't been resolved, but would you like to be the opera representative, arguing to keep your funds, with people from endangered clinics in the room?

To this, and to Sandow's essay as a whole I have two reactions. First, I think Sandow makes excellent points about the relative (perceived) economic value of arts and cultural organizations as against, say, AIDS clinics. However, this pits an abstraction (the arts) against an organization with a specific, concrete benefit (treating AIDS sufferers and fighting the spread of the disease). Continuing only along the lines of this given example, promotion of the arts means assurance that information and awareness about AIDS -- its effects, its impact, its prevention, efforts to control its spread and treat sufferers -- is widely communicated, appreciated, understood, and felt; that problem-solving necessary to productive response is engaged; and that a community of like-minded and -motivated individuals is established to turn that problem-solving into action. Of course, the arts are relatively inexpensive (in that a little support often goes a long way toward increasing awareness and communal development), so in general the 'either-or' model that forces funders to choose between concerts and clinics is a false one. We can and should fund both. That said, the parable (itself a thought-model we get from the arts) of give-someone-a-fish vs. teach-someone-to-fish applies here. We need to promote concerts if we hope to have clinics.

Second, Sandow perpetuates the canard that popular culture and the arts are somehow separate things. They aren't. They have equal validity and each is fully worthy of support. A diverse forum yields greater understanding. When I speak of 'support of the arts,' I mean specifically funding initiatives, activities, and organizations which increase this diversity. I think there is no greater cause for humanity than promoting empathy and mutual perspective, while simultaneously creating a space for productive problem solving and galvanizing each other to action. That's what the arts (and humanities) do. The point should not be to distinguish such works from mainstream culture, but rather to find ways to stimulate and expand the mainstream to absorb messages in a broader way and from a broader field than simple commercial transactions make possible. That's chiefly why I think the arts merit (require) support, and of course I would target sources outside the present embrace of popular culture not because they are somehow "better" or have greater validity, then simply because they need the amplification. To maximize personal resonance and the depth of these experiences which make us committed citizens of the world, we should engage avenues for interchange that are paradigmatically distinct from those which are popular in the moment (theater, music, games, visual art, literature, etc.). To make possible a broader appreciation or receptivity to other people and the surrounding world, we should facilitate development of artistic skills and knowledge (musical literacy, numeracy, science, familiarity with immediate and distant history and culture). To personalize the direct and indirect consequences of our actions and omissions, we should seek out and amplify those narratives which are not (or less) presently being heard, not because the stories lack power but because the narrators do (be they victims of Katrina, Myanmar, or the conflict in Sudan).

**********************

A friend of mine asked whether we could create an 'elevator answer' version of this and like observations. (While initially confused, I have since learned that this means not so much one that is uplifting as one that only takes about 5 seconds to give.) It pains me to attempt this; I call on David Letterman's reaction to Rush Limbaugh's demand for “a simple yes or no” to what should properly have been a nuanced question (“But I’m a thoughtful person.”) Since in my case, it’s more about being long-winded than thoughtful per se, I figured it couldn't hurt to give the soundbyte effort a shot. Perhaps try:

Promotion of the arts and humanities is an investment in freedom of speech. It is the warp on which our social fabric is woven. Its absence inspires demagoguery; its price is ignorance.

That's pithy enough for an elevator ride, but I'm not sure it's intelligible. How do you pack anything with examples in the context of bare rhetoric? It’s the kind of thing that risks giving the humanities a bad name.

All in all, I think it’s best to let a better (and justifiably much more widely read) blogger make my case.In a post that also ran on February 19, Andrew Sullivan calls upon works by Orwell and others not just for support of his position, but for its very inspiration:

But back to Orwell. For Orwell, in Nineteen Eighty-Four particularly, eschewing torture is about saving the possibility of truth (the best other evocations of this point that I've come across can be found in plays: The Crucible and, more recently, The Pillowman).

Sullivan is here commenting primarily about torture, but speaking to my larger point about the validity of the arts even as he relies on multiple works of literature to bring his thoughts to full flower. If I am not alone in regarding a life deprived of such well-nourished intellectual roots as torture, then perhaps we can say,

Saving the arts is about saving the possibility of truth.

Not bad for an elevator argument, I think. Uplifting, to boot?

No Museum is an Island - Picking at the Safe Haven Fallacy

Kurt Stuchell is interviewed here about his proposed new social networking site for museums called Museum and Educational Social Network (MESN). As stated in the article, the intent is "to create and maintain a safe place for young people to socially interact with museums and professionals." It appears to be a return to the safe haven concept.

It will be interesting to see how this experiment plays out. I wish Kurt success, but personally, am extremely skeptical. By removing Museums from the mainstream of social media to its own island you risk making them a backwater. Refining this metaphor, you reduce the likelihood that casual browsers and the merely curious will stumble across Museum content (and then become future seekers) in their everyday ramblings. I think people are more surfers than seekers, initially going to one of a few trusted sources (their e-mail, their banking info, the front page or funny pages of their hometown newspaper) and then letting their curiosity or social proof ("Hey, what's interesting all *those* people?") lead them onward. We appreciate well-crafted linearity, but learn and explore associatively, from one tangentially-related distraction to the next.

The dead link safe haven established and promoted by the government and briefly championed in the early 2000s by Smithsonian's Center for Education and Museum Studies (Smithsonian Education) haven't been resoundingly successful, which is perhaps not a surprise. Even little kids realize that you sell more lemonade from a street corner than from a cul de sac -- the advantages from increased foot traffic overwhelms the appearance of safety. What's more, it's a false dichotomy, since Museums like other users aren't limited to pursuing a single outreach methodology, except to the extent of their staff's limited resources. Why should museum staff invest duplicate effort? I've come to think that Facebook's power lies in its unlimited and free access to all, its enforced simplicity (despite its less customizable new design), and chiefly, its reinventability (the thing that makes Museum apps like Artshare work). Plus it has already grown its own audience.

Seems to me that offering a new business model is by itself insufficient to achieve the goals of promoting museum content in new ways on the web. Anyone wanting to establish a Facebook competitor will have to offer materially distinct functionality (say, shared web tools a la GMU's Omeka, or the kind of annotated blending of media attempted once upon a time by Smithsonian Folkways' Synchrotext, about which more here, here, and in parallel invention, as used by the New York Times and better still, in Washington Post's Debate Decoder). Even at that, substantial investment would be required to seed content and establish value. Users cannot (or perhaps better, should not) be obtained through fiat, but by the consistent presentation of valued, superior content with the least barriers to entry (even where those barriers are merely those of direct navigation).

Content providers like Museums succeed where they coexist with, invite the participation of, and facilitate feedback from an unrestricted audience and wither when they establish ivory towers. Like I said, should be an interesting experiment. As they always do, truth and talent will [win] out.

Building A Free Society: Toward A More Perfect Copyright Law

According to Matt Mason in The Pirate’s Dilemma, “Copyright laws are encroaching on the public domain, but if the history of pirates is anything to go by, such laws are not often observed, become impossible to enforce, and eventually change.” (p. 99)

Okay, folks, get ready for a rather lengthy review of The Pirate’s Dilemma, or rather, a brief review of Matt Mason’s book, followed by a more extended discussion of some of the ideas contained therein as they relate to two recent DC Bar-sponsored programs in conjunction with my current thinking about copyright law. For my fellow pedants, this essay is a logical partner to the April 3 note I called, A Digital Needle in the Haystack: Finding the Good Stuff Online, which considered problems of online plagiarism and provenance as well as the part from my 2/11/08 Kickoff to an odd-thoughts blog, a relevant paragraph of which could easily serve as the synopsis of The Pirate’s Dilemma (and this very post), to wit:

So here's my rule in our great goldfish-bowl of a world. If you like anything you see badly enough that you feel it should be copied and spread like gospel (or even perhaps smeared like cream cheese)... go ahead. Take it. Do with it what you will. Just please be sure to credit your original source (that would be me, I believe, as the author here). I make no claims to originality, except in the copyright sense. All my thoughts and work are surely derivative of whatever I've consumed (and the more recent, the more influence on the regurgitation), but at least it's been processed through this man's wetware.

My point here is less to quote myself, than to indicate the emergence of a new zeitgeist from a mere two data points. First, the brief review. Matt Mason’s book is a quick read that offers glib patter (e.g., "DJ Fezzy is getting ready for his set. It’s a cold, dark Christmas Eve in his studio, and the time is coming up to 9:00 p.m. Fezzy has come pre¬pared for a crazy-hot show, packing an arsenal of scripted material, instruments, and records, set to deliver a sonic blast of talk radio and live music. Then he’ll throw down on the wheels of steel," p. 39, referencing the first radio show broadcast in 1906 by Reginald Fessenden), lots of annoying internal hype (e.g., "That is… perhaps the most important economic and cultural question of the twenty-first century," p. 4; “The game has changed,” p. 236), a bunch of fascinating anecdotal examples of “piracy,” and a game theory-inspired model for contemporary business, sans analysis or conclusion. The anecdotes and the initial definition of the dilemma (compete with or try to suppress piracy?) are the book’s strength, and worthy of a couple hours’ browse. The book’s weaknesses preclude a need to read, however, given that much of the text is given over to filibustering platitudes and inconsistent (and therefore largely meaningless) application of the concepts “piracy” (used here to cover a gamut ranging from any crime that can be construed as social protest to any unregulated activity that has market potential, such as the first broadcasts that emerged with the discovery of radio transmission), “punk capitalism” (which ranges from idealistic kids working for love rather than money to do-it-yourself entrepreneurship), and “hip-hop culture” (the vaguest term of all, which Mason applies to everything from “youth culture” or “youth movements” as a whole dating back to the mid-to-late ‘80s to anything involving the combination of pre-existing elements that Mason likes to call remixing irrespective of context, as he uses it freely to reference collage, architectural influence/homage, music sampling, and which extrapolates as well to grade school papers derived from traditional secondary source material).

Let's forget about Mason's book now and deal simply with its eponymous dilemma -- whether it is more effective to defeat pirates indirectly by competition or directly by force. In that vein, I recently attended the first in an anticipated series of symposia whose overarching theme is, "Creative Industries in Transition." On this day, the topic was "The Continuing Vitality of Music Performance Rights Organizations," featuring a talk by UC-Berkeley Law Professor Robert Merges (hosted by rights organization BMI), the big take-home being (surprise!) that so-called music PROs like ASCAP, BMI, and SESAC are needed now more than ever to serve as clearing-houses and collective bargainers for rights holders because through economies of scale, they help minimize transaction costs.

All of this I think begs the question: what is copyright for? To channel Lawrence Lessig for a moment, why do we bother with it? Originally, the idea behind our copyright law was threefold. (1)Allow creators to control the way in which their works could be exploited (the concept of 'droit morale,' moral rights) so that, by virtue of this control, society could (2) provide creators a means of making a living, so that (3) society would benefit from a constant influx of new, creative ideas. No control, no money. No money, no (or at least insufficient) new ideas. In other words, bestowing and limiting copyright protection basically came down to incentivizing production and creating a framework for negotiation that enables distribution for the benefit of the public and ideally assures the livelihood of sufficiently popular creators. Understand that for these purposes, we don't care about the guy who sings for his shower-head or the gal who writes for her desk drawer. From a public policy standpoint, if a tree falls in a forest and no one is around to broadcast a sound recording, there is no sound.

Accepting the logic of copyright's original premises as a platform for negotiation between creator (owner) and would-be user (audience/owner) raises a surfeit of interesting questions about the nature of control we impose by law on those who would enjoy creative works (essentially, anyone with an iPod) or allow to be imposed by creators as a contingent requirement of further use or enjoyment (essentially, freedom from theft, distortion, and plagiarism). How much protection is needed to administer and enforce creators' rights to get paid and manage the exploitation of their work? What kind of controls or barriers to access should we allow (technological, legal, etc.), and how do we balance the transaction costs of seeking & granting permission against the societal benefits of free use? Should we allow a distinction between authorship and ownership, and if so, when the values of growing (or circulating) communal wealth and growing (or circulating) communal knowledge are in opposition, which should prevail?

If you buy that copyright was established primarily as an economic regime to lubricate the cogs of creativity (as I do), then I'd argue that the best way of addressing these questions and likewise the piracy 'problem' is by maintaining a close relationship between the actual cost to create, copy, adapt, and/or distribute creative works and the amount of control we give to creators or copyright owners. Your average sculptor, photographer, or designer of drapes needs no incentive to express themselves, only the wherewithal to spend their time doing so and still afford the oatmeal needed to fuel their waking existence. Application of the current copyright protection regime must ape market behavior, and if we want to see the emergence of vastly expensive shows, we must find a way for producers to reap a return on their collective investment. There's no guaranteed return from copyright protection to assure creation: the point of monopoly is less to minimize the monopolist's risk than to give them sole power to manage it, so fair punishment to the fools who brought us "Heaven's Gate."

Now consider the flip-side to the 'cost = control' premise, namely that the cheaper production and distribution are, the fewer controls we should impose. "Cheaper production? Cheaper distribution?" asks the guy typing these thoughts on a workstation for instantaneous upload to a blog and worldwide publication. Welcome to the age of digital democracy, in which the costs of production and distribution are for all intents and purposes universally low. Under this economic analysis, we must relinquish the ideal of allowing copyright owners control of works of authorship in today's digital world. Take movies again, for example, which in their Hollywood blockbuster incarnation are notoriously expensive to produce and distribute. If it doesn't (or needn't) cost much of anything to shoot a decent video and post it on YouTube (or digitally transmit to theaters), we don't need to grant so much as a limited monopoly to assure the producer breaks even. We can move the point of risk assessment back from the point of exploitation (what's the best way to maximize my profit?) to the point of production (how can I best afford to make something right now?).

You see where this is leading. Is (the need for) copyright protection obsolete? Should we keep fiddling under the hood or is it time to send the car to the scrapheap? I'm almost there, but have one more service station to visit -- Ethos.

The foregoing discussion has conveniently ignored the social justice component(s) of copyright policy. In so doing, I do not mean to gainsay the value of an author's moral rights. I think it would be a shame to allow the willy-nilly destruction of a creator's art or reputation, simply because the quid pro quo of creation renders control irrelevant. Expedience should not dictate our ethics, but to the extent that enforcement costs resources (time, money, and effort), I do think that practical considerations force us to become more precise about the protections we afford. Even in the context of the droit moral the digital world challenges the traditional paradigm of copyright control.

Increasingly, we are choosing (or forced) to sacrifice privacy for convenience. Cell phones invite eavesdropping, electronic banking invites identity theft, and social apps make us exhibitionists in a virtual, parasocial community. Data mining and semantic data association facilitates targeted communication (and observation) in a way that threatens even the inherent protection of anonymity. Our world is beginning to resemble a giant terrarium, such that it is becoming impossible for a tree to fall in a forest without being seen by somebody. In such a context, attempts to control (in this case meaning "prevent") exploitations of creative works are futile. If you don't want anyone to read your thoughts (or hear your music, see your drawing, taste your recipe, etc.), you'd best keep them to yourself. Therefore, society must relinquish the concept of control as a moral foundation of copyright. This level of copyright protection is now available only to those who can afford to pay for enforcement, and is not viable in any case.

Isn’t that where we've come to with orphan works? "Good users" who purport to be public stewards of knowledge and ideas (museums, documentarians) had been hamstrung by copyright protection in cases where the legitimate owner of a work could not be readily identified. Authorship/ownership is left ambiguous for many works (fonts, field recordings, collective efforts), perversely chilling exploitation even by users who would be only too happy to pay a reasonable usage fee or whose usage might otherwise be encouraged and let gratis. A recent DC Bar panel at Arent Fox called, "Will Orphan Works Finally Find a Home?" established that new laws resolving this issue are imminent. You can get into the nitty-gritty of this issue (as well as the nuts-and-bolts of recently passed legislation) here.

As you can see, each special interest group and pending bill articulates the details of their orphan works solution slightly differently, but the commonalities are these. If you make a good-faith attempt to identify and notify the legitimate owner of a work ahead of time and come up blank, you're free to make use of the work however you like at no cost. If and when the legitimate owner emerges, you either negotiate a reasonable use fee or stop using the work. Of course, it's not so simple, since the greater your investment in use, the greater the leverage of the revealed owner. For this reason, each proposed legislative solution tries to find a way of defining "reasonable compensation" or a transactional mechanism for establishing one. At the panel I attended, representatives of the Copyright Office recommended against imposing a compulsory royalty scheme such as the one that exists for digital rights in sound recordings and music publishing, claiming that the (transaction) cost of the bureaucracy needed for oversight and enforcement was too clunky and expensive. Still, a formal orphan works resolution is imminent, even if the business model takes a while to fine tune.

Ugh! Those pernicious transaction costs, the friction that impedes the free exchange of ideas and trade! Well, wait a minute, let's recast this in light of what we know about our digital universe. Taking time to identify the legitimate owner has a cost -- if nothing else, then as a judgment call. Negotiating with the owner costs at least the value of time. Enforcing one's entitlements in the courts has an absolute cost, but that's arguably the penalty of living outside the Badlands. It seems to me that what we have in orphan works is a system whereby we say to good actors, "Go ahead and use whatever you like however you please until you get caught. Then pay for it." If we agree that some kind of regime is necessary to regulate the payment part of things, why apply this only to orphan works? To my mind, we're still trying to fix a copyright protection scheme that our would-be frictionless digital environment has rendered irretrievably broken.

WHO-OAH, THERE'S A SOLUTION...
(Thank you, Steve Miller.)

In keeping with my "Digital Needle" take-homes:

Here, then, are a few things that museums should do to assure the continued purity and vitality of the marketplace of ideas in an increasingly-polluted digital world:

1. Be an authority:

• seek out authors and remain vigilant about properly attributing all sources;
• keep primary source material alive and digital so that it can be referenced;
• build semantic widgets to accurately and efficiently tag their "good stuff;"

2. Be a filter:

• dedicate resources to portal activity to identify others' "good stuff;" and

3. Be a good citizen:

• participate in discussions to create statutory royalty reservoirs

I think the foundation of copyright law needs to change from its obsolete "control" paradigm to a purely moral foundation of attribution and transparency. The pirate's dilemma as defined by Mason disappears when pirates are legally recognized as legitimate entrepreneurs as opposed to parasites. Acknowledging a situation that already exists, once a creator makes a work, it's "out there," and has to be considered fair game for anyone and everyone to exploit. In the digital environment, if we want to continue to incentivize creativity, then I think the way to do so is to be sure that creators receive the credit they are due. By recognizing legitimate authorship through enforced attribution, we allow the public to directly engage and support creators while at the same time protecting them from later distortions for which they are not responsible. By requiring transparency of authorship we assure the provenance of creative works that is so critical to the preservation of their communicative value. For those exploiting the works of others for fun/profit (by re-publication, broadcast, or other distribution; by sampling or adaptation; by display or performance; etc.), mandating transparency of cost/compensation allows the public to distinguish among those exploitations that they feel are fair in an otherwise crowded forum.

In one sweeping move, we eliminate piracy and the concept of the public domain. All uses are legitimate, all uses are fair, and copyright protection subsists for as long as a creator's estate is on hand to stand up for the right to be counted. Maximizing income from exploitation is a business problem, not a creative one, and the marketplace should be allowed to take care of itself (albeit, as I think will happen, on the backs of the orphan works' compensatory solution, more on which below). As the Lynn Ahrens song says, we impose law to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," and I think these are best accomplished by restricting copyright protection to promoting the ethical values of fair attribution and fair competition (in the form of mandating a transparent marketplace).

Who pays for all this free content? As Trey Parker and Matt Stone so eloquently put it in "Team America," freedom isn't free (although as they would have it, it costs $1.05, which is right now higher than the cost of the average download). It's easy to be dismissively glib here, but it has been pointed out to me by my intellectual superiors that economic incentive is a founding problem in the recognition and promotion of intellectual property. Absent a legal framework (control) to force negotiation between creators and subsequent users, the only way to assure compensation for creators is via the establishment of a compulsory licensing scheme. This, in turn, opens the door to the endless fighting over rates, the constant lobbying for re-regulation or legislative changes that take forever to implement, and the incessant fiddling in the market and Capitol to set rates at a level to protect those with the least power or by volume of exploitation, all of which will inherently change the business structure to make it possible for people to still enjoy the production of movies/operas and other complex or high-investment creative undertakings. Got that?

Not to repeat myself, but isn't that what we're coming to with orphan works? If we're setting up a scheme to regulate fair compensation to re-discovered copyright owners for otherwise grandfathered (meaning uncontrolled) exploitations, and we're groping toward a mechanism which nonetheless favors exploitation (that is, remains affordable), then economies of scale would favor extension of this model across the full spectra of creative endeavor, from architecture to zither recordings. Understand that as I conveniently gloss over the issue of monetization, I do not mean to imply that I regard this as a trivial problem. Establishing the playing field that will allow for a reasonable quid-pro-quo structure is arguably the lynchpin holding together the existing copyright structure. However, I do think these issues are resolvable and that the time is ripe to take them on. Heck, I think it's essential we do. If this blog could act as a call to arms in service of initiating this dialogue, so much the better. You'll excuse me for suggesting that the parameters yielding a new, practical, and fair payment regime for creative works will likely require much lengthier consideration, analysis, and surely heated debate than can be afforded by this short essay.

This note began with Matt Mason, and so it seems fitting to end there as well. As he writes on p. 159 of The Pirate's Dilemma:

"This new democracy looks a lot like the model used by the music business in China. A total of 95 percent of all CDs sold there are pirate copies. This is because there are such tight restrictions on the legiti¬mate sale of foreign media, and also because in Chinese society, the idea of paying for downloading music is, by and large, considered ridiculous. Recorded music is effectively a public good, free at the point of consumption. Yet a large middle class of artists make a living there, primarily from live performances. As columnist Kevin Maney wrote for USA Today, “Chinese rock stars aren’t getting as wealthy as, say, Michael Jackson, but . . . why should they? Only a relatively few American rockers ever sell enough CDs to get fabulously rich. Should society care if rockers can’t afford to build their own backyard amusement parks?”

I say no, but society should care if rockers can't stand up and demand recognition for rightful authorship, and if commercial exploiters can hide or camouflage the means by which they exact ROI from their investment. Free speech and sunshine are the cornerstones of a strong democracy. They lead to an informed citizenry, or at least to a cacophony of voices that vent the public boiler continuously enough to keep it from exploding (or if not, to give we-the-people sufficient warning signs to hopefully proactively, positively intervene before an explosion can take place). And while ideas and expression are freed from artificial constraints, popular creators can still commoditize themselves by selling access to their performances, appearances, participation in new projects, and commissioning of new works.

The digital revolution invalidates the traditional copyright paradigm, but presents a tremendous opportunity for social progress. Embracing change rather than fighting it is the best (or at worst, least disruptive) way to move forward. We must therefore retool the law to accommodate works whose circulation and evolution cannot practically be controlled and which it is legal folly to persist in trying to prevent.

Talk amongst yourselves.

A Digital Needle in the Haystack: Finding the Good Stuff Online

"Wikipedia does not publish original research (OR) or original thought. This includes unpublished facts, arguments, speculation, and ideas; and any unpublished analysis or synthesis of published material that serves to advance a position…. Citing sources and avoiding original research are inextricably linked: to demonstrate that you are not presenting original research, you must cite reliable sources that provide information directly related to the topic of the article, and that directly support the information as it is presented."
-- (From Wikipedia's NOR article)

Wikipedia, as an authority considered by a study published in Nature to be as (or more) accurate than the Encyclopedia Britannica and which now dwarfs it in volume of entries aims to be a repository for established (if not common) knowledge. As the above quote indicates, Wikipedia's chief weapon in this pursuit is reliance on citations to reliable sources. But in these heady digital days in which original ideas are promulgated at light-speed alongside substandard copies and half-baked iterations (guilty as charged?), how do users identify those sources that are reliable? Taken in a museum context, this question could invite a books' worth of consideration, but for the sake of this blog entry I'll just aim for a thumbnail sketch and touch on specific concerns of plagiarism, of museum authority, and of orphan works.

An Information Theory Approach to Plagiarism

To judge from the complaints I've heard, teachers, professors, and editors are being driven to distraction now more than ever before by a generation which does not seem to understand the importance of properly attributing their source material. When not dealing with ethically-challenged sloths who prefer to submit third party-drafted essays as their own homework, the watchdogs of the new recognize a more insidious copy-and-paste dilemma fomented by the internet, one in which paraphrasing and proper sourcing are increasingly (and nonetheless erroneously) viewed as passe. However, plagiarism represents a bigger threat to scholarship than simple laziness or academic fraud would make it appear.

My reader(s) presumably will accept my argument that proper attribution is, like provenance, crucial to credibility of content (to say nothing of the underlying author's ego and pocketbook, which surely are entitled to at least minor limning as a means of encouraging/making possible future contributions to the marketplace of ideas). However, the further down the road we get with digital publishing, the fewer the obstacles that emerge to impede the proliferation of unintended plagiarism. Left unchecked, popularity and ease-of-indexing become more the arbiters of influence and ready identification than do originality and authenticity. What makes this so insidious is that as the amount of content on the internet increases exponentially, so does the ratio of noise-to-signal. The prevalence of citations to identical articles or parts or paraphrases taken from such articles that have been erroneously attributed to different authors is only going to increase in the infinite plane of hypertext. Therefore, museums and academic publishers must not only remain vigilant about properly attributing original authorship, but develop, identify, and take advantage of new, user-friendly means of assigning accurate credit.

Thanks to Claude Shannon, the father-author of information theory, we have a means of comparatively quantifying the new, and can therefore deal with the paradox of intellectual relativism posed by the Universal Library -- that fictional infinite repository which contains every volume from A to ZZZZZ… including not only the complete works of Shakespeare (and translations to as-yet-uninvented languages and every binary-encoded video incarnation of performances of these), but somewhat less helpfully the complete works of Shakespeare less the second-to-last lowercase letter 'r.' Pull a "video" from off the Universal Library's shelf and you are 10^x times more likely to see snow as to you are to see anything that passes for a performance of Macbeth. (For all you lay science readers out there, I highly recommend William Poundstone's books, "The Recursive Universe: Cosmic Complexity and the Limits of Scientific Knowledge," "Labyrinths of Reason: Paradox, Puzzles, and the Frailty of Knowledge," and especially, "Fortune's Formula: The Untold Story of the Scientific Betting System That Beat the Casinos and Wall Street" which provides more insight on Shannon specifically.) Further, most source material lacks the authorial power of celebrity that Shakespeare's works enjoy. Apart even from issues of accurate attribution, for the ideas subsumed in these original works to retain their resonance and value, there must be a way to distinguish inaccurate copies beyond authorial brand recognition.

Thanks, But I Prefer Museum-Brand Filters

To combat this ever-rising tide of online ignorance, I think museums must serve at least two functions. First, they must establish themselves as a filter, an online brand that represents the "accurate," "well-researched," and true. Above and beyond accuracy, a museum should never publish or republish any content for which it cannot verify provenance and authorship. More than this, and in lieu of presenting themselves as an exclusive vehicle for "the good stuff," museums should dedicate at least part of their online outreach efforts to portal activity by linking to or otherwise calling attention to this "good stuff." As Jim points out in his post on federated authentication, there's a movement afoot to share or network login approvals among the respective staff of museums and cultural organizations (much the way that banks' respective ATMs acknowledge their customer's respective cards and account information). Where A trusts B and B trusts C, so should A be able to trust C. The public should remain confident that what it finds on or via museum websites will lead quickly and easily back to original and respected sources.

Second, museums must act as an authority on what people should take seriously with their explicit content (exhibits, articles, and research) and especially their implicit content (metadata, taxonomical standards, and search tools). This is something that makes museum involvement in the theoretical semantic web so important. Museums as much as other authoritative content providers owe it to their public to lead them to what they regard as "relevant" and "right." But can the data itself help users reach such conclusions?

Consider the attitude of a lay user with an interest in banjo music. At this moment, a search for "banjo" on Smithsonian Global Sound yields 316 pages and 3158 results. That's certainly better than starting the same search on Google, which produces 232,000 results for "banjo bluegrass" and 628,000 results for "banjo blues" (all results presumably dated as of the publication of this blog posting), but still off-putting to someone who just wants quick access to the "good stuff." What to make of any of this? Curated mediation by initial article/item selection (i.e., that which has been included in the SGS database), cross-referencing, context, and related articles will sometimes point confused users in the direction of "favorites" and icons of virtuosity. However, it's beginning to look as though the semantic web offers the possibility that a straightforward set of algorithms can sort this overwhelming offering of material by "relevance" and rightness" -- for example by telling users which results are both most distinctive (using unique attributes as a measures of originality) and most frequently referenced (as a synonym for determining influence on later work). In this semantic utopia, users should then be able to follow the trail of influence from an original "root" of authorship (say, those forbears as existed in 18th and 19th century broadsheet ballads or slave songs) to its further branches of influence (say, Brownie McGhee, Pete Seeger, and Bruce Springsteen). My personal ignorance of "true" banjo-based blues progenitors notwithstanding, my point is that the data here may be seen as containing the DNA of its own provenance.

The Fallacy of the Orphan Works Dilemma

For academic and edu-cultural organizations to fulfill their proper role as both filter and authority, they must be able to act on content (meaning exploit and further promulgate as a component of research and diffusion), whose authorship and/or ownership may be a bit on the cloudy side. In some cases, this may be considered usage that exceeds "fair use" under the Copyright Act. Certainly, given that copyright law leaves the ultimate definition of "fair use" to the courts on a case-by-case basis, every museum use inherently involves some exposure to claims of infringement, and this often has an impact in determining which images are included in exhibition catalogs, books, and websites and like decisions that straddle the traditional worlds of commerce (chiefly publishing) and education, reportage, and critical commentary (traditionally considered well within the boundaries of copyright's "fair use" defense). Museum staffers enjoy opportunities to engage authors/artists in discussions about the potential use of their work (perhaps less so authors'/artists' estates), but spend lots of frustrating time stymied by so-called "orphan works." (I have a colleague in legal who has had to hold up museum use of a bunch of sound recordings for over a year while chasing down sound recording ownership issues.)

According to the US Copyright Office, “orphan works” are those works within the term of copyright protection whose owner(s) cannot be identified and located. “Orphans” are considered public domain, available for unfettered exploitation by all. (See this white paper, published in 2006.) Thanks to the European Union and the Sonny Bono copyright extension law, the term of the majority of works under copyright now lasts for the life of the author plus 70 years. This isn’t the place to go into details over the intricacies of copyright law, but suffice it to say that considering the statutory duration exceeds that of any single human life, we can make a few simple assumptions. First, this is a heck of a long time as by definition the term of copyright protection in any work will outlive its author. Therefore, it follows that at some point in a work’s copyright life, a would-be licensor will have to deal with the author’s estate, if such there be (the author being dead and gone). Further, if such readily identifiable estates there be not (and things can get pretty murky some 50 years after anyone’s death, notwithstanding the presence of estate lawyers), would-be licensors may well be considering use of an “orphan.”

This issue has been explored in better fora than this (in an April 24, 2007 DC Bar panel program, for example), but in a nutshell the debate centers around how we can assure that lawful copyright owners can receive the compensation and protection to which the law entitles them without unnecessarily removing a large volume of relatively contemporary work from circulation just because we believe a lawful owner has yet to be identified. Let’s remember as well that orphan works include not just those “abandoned” by an artist’s death, but those whose initial attribution may not have been well-identified to begin with (stolen or grey-market wallpaper designs, papers authored by a collective long since disbanded, traditional “folk” art, sound recordings of naïve performers, etc.). Though I summarize the problem in breezy fashion, so-called “orphan works” present a potentially serious dilemma for cultural organizations inasmuch as they set in opposition two mainstays of museum credibility as regard cultural and historical materials, use/publication/distribution and sensitive treatment. The flimsy solution floated to solve the problem requires would-be users to exercise due diligence before considering a work to be “orphaned,” and upon notification by a legitimate owner promptly cease use or else pay up for continued use. It’s the niggling details of what levels of effort should constitute “due diligence” and be sufficient to recant (or pay for) the sin of use that make the solution a rather flimsy one.

Why bother with a solution at all? Perhaps copyright use prohibitions ought to be struck in favor of a new regime that promotes clear attribution of original authorship while establishing statutory licensing fees across the board (as is already the case for cover artists re-recording yesterday’s new releases). Setting principal aside, the digital environment is not one which lends itself to authorial control. As I pointed out above in my observations about online plagiarism, the creator(s) foolish enough to publish a work today will see it self-replicate, mutate, and disseminate the moment a binary-source facsimile is produced. The only way to keep the virtual cat in the bag is for the cat not to exist at all, and I think most creators would find that somewhat self-defeating.

If the world wide web renders copyright enforcement difficult, if not impossible, perhaps the presence of a uniform, published billing structure could increase the likelihood of authors receiving compensation while assuring authorial recognition. Would "open-sourcing" works chill distribution and minimize compensation by depriving authors/owners of the commercial benefits afforded by monopolistic control? It’s doubtful. The success of online micropayment vehicles like i-Tunes and PayPal pretty clearly demonstrate that enough people prefer to pay for affordable, desirable content to allow for a valid business model. “Open-sourcing” works works. The argument that authors should not be required to relinquish commercial control of their work simply because the internet makes it easier to co-opt works or copy them is, I think, a moot one. Reality is an amoral (as opposed to immoral) place; we must adapt our social structures to deal with what life throws at us.

Viewed from the Wikipedia perspective rather than that of current international law, the orphan works problem is misstated. The more the marketplace of ideas fills with noise, the more critical it becomes for us to be able to identify a good signal. It is therefore far more important that original works of authorship be recognizable and be reliably recognized. Yes, authors of all stripes should be able to be fairly compensated (and therefore hopefully incentivized) for their creative production. We continue to have a need for innovative, low transaction cost mechanisms for collecting and distributing money (and for fair enforcement of same). However, the focus on orphan works should prioritize the need for accurate source attribution, something which as stated above, must be considered central to the museum’s “brand.” In an age of mass information consumption, it is imperative that the contents of our firehose not be filled with empty calories.

Endpaper - The Talking Points

Here, then, are a few things that museums should do to assure the continued purity and vitality of the marketplace of ideas in an increasingly-polluted digital world:

1. Be an authority:

• seek out authors and remain vigilant about properly attributing all sources;
• keep primary source material alive and digital so that it can be referenced;
• build semantic widgets to accurately and efficiently tag their "good stuff;"*

2. Be a filter:

• dedicate resources to portal activity to identify others' "good stuff;" and

3. Be a good citizen:

• participate in discussions to create statutory royalty reservoirs

* [The Powerhouse Museum, a lead participant in the www.steve.museum project, may be among the first to take aggressive advantage of this, see this article.]