James Boyle is chairman of Creative Commons and teaches law at Duke. He’s talking about the nature of openness. [Note: Live blogging. Error prone and error-full.]

We have patterns of behavior that economic theory does not predict. We are risk averse. For example, it makes no sense to buy a warranty; we buy them out of an absurd sense that buying the warranty affects the device’s outcome. There is another kind of bias that we wouldn’t predict from economic theory: A systematic bias against openness. We don’t expect openness and collaboration to generate what they do. We overestimate the risks. We underestimate the risks of closed systems and overestimate closed systems’ benefits.

Suppose in 1990 I came to you with two proposals: Build an open system. Or, build something like Minitel, Compuserv or AOL; it’s controlled and permission-based. Which would you pick? If you pick the first, you’ll have piracy, spam, massive amounts of crap, flame wars, massive violations of IP, use for immoral purposes. “I think you’d pick network #2″ because those risks are foreseeable, but you couldn’t imagine wikis, blogs, Google maps, etc. It’s hard for us to imagine the benefits of open systems. It’s not intuitive.

Again, in 1990 you are asked to assemble the greatest encyclopedia, in most languages, updated in real time, adopt a neutral point of view. In 1990, you’d say that you need maybe a billion dollars, a hierarchical corporation, lots of editors, vet the writers you’re hiring, peer reviewers, copyright it all to recoup the money we’ve invested, trademark it. And someone else says, “We’ll have a web site, and people will like put stuff up and people will edit it.” How many of us would have picked #2. We don’t understand openness.

Free software is the same story.

What conclusions should we draw? Some people are raised in places where they learn how to drive in snow and ice. They learn to turn into the skid, contrary to our impulses. We can train ourselves to overcome our biases. But open doesn’t always work. Sometimes we do need closed, controlled. E.g., open won’t get us all the way to a phase 3 drug trial. Open doesn’t always work for privacy. We need a world with both open and closed.

So far, James says, we in the audience agree. Now for some things that will not flatter our sympathy.

He talks about Putnam’s “Bowling Alone” that talks about the loss of civil organizations in America. But, Putnam noticed that in the early 1900s American intellectuals noticed that the move to cities fragmented the old ties. But they didn’t say that history will just automatically correct itself. Instead, they created organizations like the Kiwanis, the Elks, etc. They invented institutions to make up for a problem they saw. Eventually, those institutions worked.

So, if we are bad at judging the boundaries between open and closed, if it’s important to get it right, then it’s beholden on us to create the institutions of civil society that enable us to get past our biases. Creative Commons is one such. It provides an infrastructure for sharing our work.

Science Commons is another such group. The Web was created to exchange scientific info, but the Web currently works much better for buying shoes or porn than doing that. The vast majority of scientific literature is behind the pay wall. You can find it but not read it. Nor can you build a sort of Google Maps mashup — take all the literature on malaria, find all the geo locations, all the proteins, overlay it, build a wikipedia for science. You can’t do that because it’s illegal, technologically impossible, and even if you could, you can’t reassemble it and do a click and buy. “The World Wide Web doesn’t work for science.” Science commons tries to address that…

Q: Is the bias a metaphor or an inherent inability to understand openness?
A: About 80% is explained by the fact that for most of my generation’s lives, our experience of property was with physical things; if I have it, you can’t. There are economic benefits to knowing who owns it. The closed intuitions generally work there.

[I have to stop to get read to give my talk …] [Tags: ae08 ars_electronica james_boyle creative_commons copyright ]