“Damn their lies and trust your eyes. Dig every kind of fox!” I here sing one for the freedom to mix it up as you and your honey alone see fit:

“Hapa” means “mixed race” in Hawaiian. Skin-tone mash ups have profoundly enriched my life, first with the Honolulu Hapa herself and then with our own little hapas. Honolulu Hapa celebrates coloring across the lines, knocks racism, and gives a shout-out to Loving v. Virginia, 88 U.S. 1 (1967)—the case where the U.S. Supreme Court struck down anti-miscegenation laws as unconstitutional restraints on personal liberty.

As with the prior four songs I’ve posted in this recent series (Take Up the Flame, Sensible Khakis, Nice to Be Wanted, and Hello, Jonah,), Honolulu Hapa comes with a Creative Commons license that allows pretty liberal use by all but commercial licensees, who have to pay a tithe to one of my favorite causes. Honolulu Hapa aims to help Creative Commons, an organization that helps all of us to mix—and remix—it up. Unlike those other songs, however, Honolulu Hapa adds a special ‘unrestricted use” term effective on June 12, Loving Day.

With Honolulu Hapa, I conclude my recent series of freedom-loving music videos. Like it or not, though, I’ve got more music-making plans. Next, I’ll record some good studio versions of those (and perhaps some other) songs. Eventually, I’d like to release a fundraising CD, one that might help out some good causes. Silly? Yeah, I guess so. But it does add another data point in support of my hypothesis: Freedom has more fun.

[Crossposted at Agoraphilia and Technology Liberation Front.]

It’s been a big year for tech policy books. Several important titles were released in 2008 that offer interesting perspectives about the future of the Internet and the impact digital technologies are having on our lives, culture, and economy. Back in September, I compared some of the most popular technology policy books of the past five years and tried to group them into two camps: “Internet optimists” vs. “Internet pessimists.” That post generated a great deal of discussion and I plan on expanding it into a longer article soon. In this post, however, I will merely list what I regard as the most important technology policy books of the past year.

What qualifies as an “important” tech policy book? Basically, it’s a title that many people in this field are currently discussing and that we will likely be talking about for many years to come. I want to make it clear, however, that merely because a book appears on this list it does not necessarily mean I agree with everything said in it. In fact, I found much with which to disagree in my picks for the two most important books of 2008, as well as many of the other books on the list. [Moreover, after reading all these books, I am more convinced than ever that libertarians are badly losing the intellectual battle of ideas over Internet issues and digital technology policy. There’s just very few people defending a “Hands-Off-the-Net” approach anymore. But that’s a subject for another day!]

Another caveat: Narrowly focused titles lose a few points on my list. For example, as was the case in past years, a number of important IP-related books have come out this year. If a book deals exclusively with copyright or patent issues, it does not exactly qualify as the same sort of “tech policy book” as other titles found on this list since it is a narrow exploration of just one set of issues that have a bearing on digital technology policy. The same could be said of a book that deals exclusively with privacy policy, like Solove’s Understanding Privacy. It’s an important book with implications for the future of tech policy, but I demoted it a bit because of its narrow focus.

With those caveats in mind, here are my Top 10 Most Important Tech Policy Books of 2008 (and please let me know about your picks for book of the year):

(1) Jonathan Zittrain ­– The Future of the Internet, and How to Stop It

Zittrain’s book is the most important of 2008 because it’s the one we will still be talking the most about a decade from now. However, I think we’ll be talking about how wrong his thesis was that the “generative” Internet and general purpose PCs are dying.  Indeed, I’ve been quite critical of the thesis that Jonathan sets forth in his book, and I have discussed my reservations in a lengthy book review and a series of follow-up essays here and elsewhere. (Part 1, 2, 3, 4, 5).  We’ve also debated his book on the an NPR-Boston [audio is here] and we debated in person at New America Foundation in early November [video is here].

Despite my serious reservations, Jonathan’s book is important, well-written, and absolutely deserves your attention if you care about the future of technology policy.

(2) Nick Carr – The Big Switch: Rewiring the World, From Edison to Google

Part 1 of Nick Carr’s book is an eloquent early history of cloud computing, nicely comparing it to previous technological revolutions. It’s beautifully done. In Part 2 of the book, however, Carr turns sour and argues that the impact of cloud computing will be quite miserable for our economy, culture, and society. The Big Switch probably makes the best case than any Net pessimist has been penned thus far, and for that reason alone it deserves your attention. Ultimately, however, I found his case unconvincing.

You can find my complete review of Carr’s book here.

(3) John Palfrey and Urs Gasser – Born Digital: Understanding the First Generation of Digital Natives

Palfrey and Gasser’s fine early history of this generation of “Digital Natives” serves as a starting point for any conversation about how to mentor and interact with the children of the Web. It’s a comprehensive and very even-handed discussion about a variety of concerns or Internet pathologies, including: online safety, personal privacy, copyright piracy, offensive content, classroom learning, and much more. Despite a few nitpicks, I really enjoyed this book and highly recommend it. Importantly, it is a very accessible book that even the non-tech layman can pick up and appreciate. [Note: Don Tapscott’s Grown Up Digital: How the Net Generation is Changing Your World, shares a lot in common with Born Digital, but Tapscott doesn’t spend much time on policy issues and that’s why his book isn’t on my list.]

My review of Palfrey and Gasser’s Born Digital is here. [Update Feb 2009: I also hosted a podcast about the book featuring Prof. Palfrey.]

(4) Clay Shirky – Here Comes Everybody: The Power of Organizing without Organizations

While Nick Carr [see #2 above] and Lee Siegel [see #5 below] are leading the “techno-pessimist” parade this year, Clay Shirky is this year’s leading cheerleader for “cyber-optimism.” Shirky argues that the falling costs and growing ease of digital distribution are making it increasingly easy for individuals to engage in group-forming and collective action endeavors. The resulting rise of “mass amateurization” poses a significant challenge to old media operations and traditional business models and practices. In this sense, Shirky is building on many of the themes and arguments previously set forth in books like The Wealth of Networks (Benkler), Wikinomics (Tapscott and Williams), and Convergence Culture (Jenkins). If you’ve already read those titles, you’ll find a great deal of familiar thinking here.

I never got around to putting together a full review of Here Comes Everybody, but Tim Lee had a nice write-up over at Ars earlier this year.

(5) Lee Siegel – Against the Machine: Being Human in the Age of the Electronic Mob

Siegal is this year’s Andrew Keen; a cyber-sourpuss who thinks the whole world is going to hell and that the Internet is to blame. Like Keen’s Cult of the Amateur, Siegel’s Against the Machine is an anti-Web 2.0 screed that finds no redeeming qualities about the Internet or user-generated content.  In particular, Wikipedia and amateur production are blasted as being detrimental to professional media.

Both Siegel and Keen are essentially channeling the ghost of the late Neil Postman, whose 1992 book Technopoly remains the classic statement of techno-pessimism. They prove worthy disciples as they preach the Gospel According to Chicken Little and push for a neo-Luddite revival. But Siegel’s techno-pessimism is boundless and his hatred for all things digital is truly breathtaking. For that reason, however, his book deserves attention.

My lengthy critique of Siegel’s book can be found here.

(6) Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds.) – Access Denied: The Practice and Policy of Global Internet Filtering

This is essential reading for anyone studying the methods governments are using to stifle online expression. The contributors provide a regional and country-by-country overview of the global state of online speech controls and discuss the long-term ramifications of increasing government filtering of online networks. Even if you don’t read the whole thing, this is a must-have title for your bookshelf since there is no other resource out there like this. And it should be required reading in every cyberlaw class in America. [Note: It also contains a very helpful chapter on the mechanics of Net filtering.]  Very highly recommended.

(7) Hal Abelson, Ken Ledeen, and Harry Lewis – Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion

Think of this book as “Internet Policy for the Educated Layman.” Abelson, Ledeen, and Lewis survey a broad swath of tech policy territory — privacy, search, encryption, free speech, copyright, spectrum policy — and provide the reader with a nice history and technology primer on each topic. Like Palfrey and Gasser’s Born Digital [see #3 above], Blown to Bits is very accessible and each chapter contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. Recommended.

My review of Blown to Bits can be found here.

(8) Lawrence Lessig – Remix: Making Art and Commerce Thrive in the Hybrid Economy

Remix treads a lot of ground already covered in Lessig’s other books and essays (perhaps it should have been called “Rehash”), but it more fully develops his thinking on the legal treatment of derivative works. Actually, in some ways (especially in the second half of the book), it’s more of a restatement of much of what is found in Benkler’s Wealth of Networks, albeit in a far less verbose fashion. Regardless, Prof. Lessig has attained rock-star status in tech policy circles and the release of each of his new books or papers becomes a bit of an event. Remix has been no different. It has already attracted a great deal of attention and deserves to be on this list for that reason alone. But if you have read his previous work, you’ll already be familiar with much of what you find in Remix.

Generally speaking, I thought Prof. Lessig made a good case regarding the benefits of remix culture and why copyright law should leave breathing room for the various derivative works of amateur creators. But he too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it). To solve that latter problem, he endorses a “simple” blanket licensing scheme for the Internet. In this essay, I addressed why blanket online licensing would be anything but simple.

(9) James Bessen and Michael J. Meurer – Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk

Bessen and Meurer argue that America’s patent system is in trouble because “it fail[s] to provide clear and efficient notice of the boundaries of the rights granted.” Patent litigation has exploded, they say, and the costs of the system now outweigh the benefits. Generally speaking, with the exception of the chemical and pharmaceutical industries, Bessen and Meurer don’t feel the patent system does a lot of good.”[I]t seems unlikely that patents today are an effective policy instrument to encourage innovation overall,” they conclude. They detail several reforms to help improve notice and to “make patents work as property” again the way they claim they once did.

Although the authors deal with patents broadly, the book has great relevance to digital technology policy because of their discussion of business method patents and software patents. (Incidentally, that chapter from the book is available online). They argue that software technology is especially prone to problems of “abstraction” and obviousness. As a result, software patenting has been a major contributor to the litigation explosion we have seen in recent years.

Although I agree with their case against software patents, I remain unconvinced that the patent system is failing as badly as Bessen and Meurer claim. Nonetheless, they present a powerful case that deserves to be taken seriously. Patent Failure will have an enormous impact on these debates going forward.

For more opinions on the book… Tim Lee posted a favorable review of Patent Failure over at Ars this summer. And, back in March, there was a lively discussion about the book over at Patently-O. Finally, at last year’s PFF “Aspen Summit,” Michael Meurer debated these issues with some of America’s leading patent law experts. Bronwyn H. Hall, Professor of Economics at Cal-Berkeley, challenges his findings. The video of that panel is here.

(10) Daniel Solove – Understanding Privacy

Daniel Solove’s book — and his approach to classifying and dealing with privacy problems — will have a profound impact on all future privacy debates. In that sense, it is a vital text; a must read for all who follow, or engage in, privacy debates.  On the other hand, Solove’s claim that he can construct a new paradigm based strictly on a pragmatic, utilitarian, “?problem-solving” approach, is ultimately a failure. There is just no getting around the fact that, at some point, you are going to have to provide a more robust theory of rights or justice to explain why one right trumps another. I elaborate in this lengthy critique of Solove’s Understanding Privacy.

Honorable Mentions: Here are a couple of titles that I couldn’t fit on my list but that you might want to also consider reading: Neil Netanel – Copyright’s Paradox; Matt Mason – The Pirate’s Dilemma: How Youth Culture Is Reinventing Capitalism; David Friedman – Future Imperfect: Technology and Freedom in an Uncertain World; Cory Doctorow — Content; and Don Tapscott — Grown Up Digital: How the Net Generation is Changing Your World.

Please let me know if there are other titles I have overlooked, and let me know your opinion about the best technology policy book(s) of 2008 by voting in our poll and commenting more down below.

[poll id=”3″]

I’m finishing up Stanford Law School professor Lawrence Lessig’s latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy and wanted to make a brief comment about his call for a “simple blanket license” to solve online music piracy.

Overall, I thought Prof. Lessig made a good case regarding the benefits of “remix culture” and why copyright law should leave breathing room for the various derivative works of amateur creators. On the other hand, Lessig still too often blurs remix culture with “ripoff culture” (i.e., those who aren’t out to create anything new but instead just take something without paying a penny for it).

To solve that latter problem, Lessig again endorses a proposal that William Fisher, Electronic Frontier Foundation, and others have made for collective licensing of all online music, but he fails to drill down into the devilish details. He says, for example, that “by authorizing a simple blanket licensing procedure, whereby users could, for a low fee, buy the right to freely file-share” we could “decriminalize file sharing.” (p. 271)

I respect the fact that Lessig is at least acknowledging a problem exists and proposing a solution to it, but the collective licensing approach will be anything but “simple” in practice. As I have pointed out here before, collective licensing proposals and efforts almost always become compulsory in practice.  They inevitably involve government mandates to determine (1) who pays in, (2) how much they pay in, as well as (3) how much gets paid out and, (4) who gets the money.

That final part is the most challenging: How do we determine who should get paid what under a blanket licensing system for the Net? What formula shall we use to determine why one artists gets more than another? After all, counting downloads won’t be simple, and it can be gamed. Lessig says that “there are plenty of ways that we might tag and trace particular uses of copyrighted material.” (p. 272)  Really? If that was the case today, then we would have a fully functioning copyright clearance and compensation system in place already. But “tagging and tracing” is easier said than done. The fact is, the same complexities we face trying to enforce such tagging and tracing systems under the present copyright system would be present in any compulsory licensing system.

And there are still more questions to consider about collective licensing. For example, how do we restrict free-riders who attempt to evade the blanket charge the rest of us are paying? How would we deal with ISPs who refused to play along and embed such a fee in their monthly bills? (Of course, if the fee was reasonable, many ISPs would likely be willing to pass it along to their customers in exchange for freedom from future copyright liability. After all, some ISPs have already expressed an unwillingness to play the role of copyright cop, so they might initially look favorably on a blanket licensing system. But they might still need to engage in some filtering efforts to determine who is downloading what).

There are many thorny questions about the fairness of imposing a blanket fee on all online users even if they don’t listen to any music, or those who would be offended at the prospect of being forced to pay for certain types of music (think of grandmas paying for gangsta rap). On the opposite end of the equation, there’s the question of fairness to artists who may not want to surrender the rights to their musical creations at government-set terms and rates. Finally, what about other types of media creators and distributors? If we’re going to have a blanket fee for online music, why not movies, television content, video games, and everything else?

Thus, while I appreciate Lessig’s argument in the conclusion of the book about “recognizing the limits of regulation,” it’s important to realize that collective / compulsory licensing introduces a different layer of regulatory complexity and that we will need to deal with many of the same challenges we’re trying to deal with under the existing copyright system. I would have liked to see Prof. Lessig explore these challenges in greater detail in Remix.