Prosumption And A Pocket Full of Kryptonite

I was catching up on my reading in a more relaxed atmosphere this weekend when I hit Chapter 5 of Wikinomics: How Mass Collaboration Changes Everything. The chapter starts off with Lawrence Lessig holding a Q&A session with Philip Rosedale in Second Life; the book is about collaboration and the specific chapter is on prosumers. For those who know my avatar (Nobody Fugazi) and have been following what I have been writing - it is largely about virtual worlds and has been focused on Second Life.

My focus on Second Life in the context of virtual worlds is natural. It is one of the few worlds out there which allows people to own their creations within the world of silicon and code - therefore, it is very interesting to me in the context of developing nations, ICT, Free Culture... I could go on, but the point is that the major attraction of Second Life has been that there is a chance for Second Life to become a platform of commerce which can help allow more homogenous globalization even with the downside of bandwidth and computing requirements. Given an opportunity to create something and place it in an international bazaar - which Second Life could be - many creative people around the world stand to gain. That this has flourished is well known; that it has only flourished in some regards is noteworthy.

Within the book, Philip Rosedale is quoted as saying:

As every free society has discovered, we have realized more and more over time, how much our community is a developing nation, and how, if we want to succeed, we must make the choices that advance us all.

These are very thoughtful words. He also mentioned that they (Linden Lab) had a meeting with in 2003 - and that, 'Lawrence was kind enough to attend, and to give us his thoughts on IP, land, and how things should be. Shortly thereafter we gave IP rights to creators and switched to our system of land ownership.'

Lawrence, of course, is Lawrence Lessig. What I find odd - however long ago this referenced discussion took place - is that Second Life still doesn't allow for Creative Commons licensing. I find it difficult to believe that Lessig would not have mentioned that. There have been calls to open up licensing within Second Life to allow for more open licensing, but those calls have not been addressed - indeed, they seem to have been swept under the carpet. And that Lessig spoke to them about land does not seem to make sense to me given what I have written about 'Property and Second Life' - quoting Lessig himself from two different texts. Perhaps the metaphors were mixed to vigorously. After all, 'land' in Second Life is not owned; it is rented (despite what the literature may say). It is de facto web hosting with a three dimensional feel.

Land, Privacy, Ownership, Trespass

Perhaps that wasn't explained to Lessig; perhaps it was - the net result is that while Linden Lab talks about being open, it isn't readily transparent. Indeed, the marketing department is, for all intents and purposes, wandering around with 3d eye patches when it comes to what Second Life 'land' is. And this has gotten them into at least one interesting issue in the context of Bragg vs. Linden, especially in the context of Leo Burnett. "Its trespassing. It's taking someone else's property."

Trespassing. 'Taking someone else's property'. In the context of the quoted metaphor, the backyard is what is being trespassed upon - where trespass would be 'a wrongful entry upon the lands of another.'. What Michelotti did was rather novel - she twisted the screaming metaphor from 'an unlawful act causing injury to the person, property, or rights of another, committed with force or violence, actual or implied.' into wording which dances between privacy and property.

Some people would say that trespass refers more to privacy than property; this is not new. As Daniel J. Solove noted ²:

In other words, Lessig suggests a technological implementation for a market system where people have property rights in their information.

The rub here is that Michelotti was not speaking of 'privacy' in that metaphor, and if she was it would seem somewhat counterproductive when one is the counsel for an advertising executive. That is sort of like the counsel of an exhibitionist arguing that the client has a right to be clothed. Certainly, the client has that right but that certainly wouldn't seem to be the issue at hand, no matter how trivial the exhibitionism.

It isn't very clear cut, any of this - especially when so many lawyers and experts mix the metaphor soup. And this takes us back to where these two things, land and intellectual property, merged.

Lawrence Lessig explains this in the context of American Law with this excerpt from Free Culture: The Nature and Future of Creativity:

At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to "an indefinite extent, upwards."1 For many years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? Then came airplanes, and for the first time, this principle of American law"deep within the foundations of our tradition, and acknowledged by the most important legal thinkers of our past"mattered. If my land reaches to the heavens, what happens when United flies over my field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how much these rights are worth? In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the terrified chickens apparently flew into the barn walls and died), the Causbys filed a lawsuit saying that the government was trespassing on their land. The airplanes, of course, never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their land reached to "an indefinite extent, upwards," then the government was trespassing on their property, and the Causbys wanted it to stop.

The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional "taking" of property without compensation. The Court acknowledged that "it is ancient doctrine that common law ownership of the land extended to the periphery of the universe." But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court, [The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.

Then, in Code: Version 2.0, Lessig makes the parallel with Second Life³:

In version 1.1[of Second Life], there was a fairly major change to the physics of the land. Whereas before users were free to teleport anywhere, now, to avoid harassment, owners of land could decide whether others could "trespass" or not - either by setting a default to grant or deny access, or by adding a list of people who were free to visit. These restrictions, however, applied only to the first 15 meters above the property. Beyond that, anyone was free to fly, even if the owner didn't want them on the property...

...But notice the important difference. In real space, the law means you can be penalized for violating the "high/low" rule. In Second Life, you simply can't violate the 15-meter rule. The rule is part of the code. The code controls how you are in Second Life. There isn't a choice about obeying the rule or not, any more than there's a choice about obeying gravity.

So code is law here. That code/law enforces its control directly. But obviously, this code (like law) changes. The key is to recognize that this change in the code is (unlike the laws of nature) crafted to reflect choices and values of the coders.

If Linden Lab, which had meetings involving Lessig, came up with 3d web hosting as property and intellectual property which belongs to the users... then why are there so many problems with land in Second Life, and is it not a misrepresentation to refer to it as land? And if a content creator cannot decide to allow commercial or non-commercial use of their creations within Second Life, and if the cost of litigation of intellectual property disputes does not scale well, do creators within Second Life actually have solid rights? And if a content creator cannot define how their creations are used and have a means of enforcing it...

Well, isn't this all a bit like meeting with Superman and having a pocket full of kryptonite?

¹ Quote attributed to Bob Garfield's "Inside the New World of Listenomics", AdAge.com (October 11th, 2005)
² in The Digital Person: Technology and Privacy in the Information Age, Chapter 5..