Misunderestimating openness

by James Boyle


“When we founded the movement to translate the Bible into the vernacular, we had a bold new vision. Now, each person would be able to interpret Scripture for themselves, without the barrier of a dead language standing in the way! We imagined a calm, rational world, with enlightenment spreading along with literacy.  Some of that happened, but you know what else did? Crazy stuff! I mean, I am talking Hundred Years War, hair on fire levels of fractious heresy and schism. Bizarre cults! Powerful elites even enlisted “religious dissent” in the campaign to excuse their own wrongs, execute inconvenient royal spouses and entrench their power further. Clearly, the time has come to denounce the naïve idealism of the past and offer a new movement: Vernacular 2.0. In this new vision, we will strive to make sure people have the freedom to read Scripture in their native tongue but don’t come to bad conclusions…”.

“When we planned to make our societies more democratic, with universal suffrage, we had in mind a wise citizenry debating policy in a reasoned way. We got some of that, but you know what else happened? Existing concentrations of power and wealth used these new voters as just another tool to achieve their self-interested goals! Prejudice was fanned, existing divisions exaggerated, and hatred spread along with reason. Democracies sometimes appointed terrible leaders who did terrible things. Clearly, the time has come to denounce the naïve idealism of the past and offer a new movement, Democracy 2.0, more attuned to distortions of power and money, which will aim at only allowing good democratic choices…”.

“When we started the “free speech movement,” we had a bold new vision. No longer would dissenters’ views be silenced. With the government out of the business of policing the content of speech, robust debate and the marketplace of ideas would lead us toward truth and enlightenment. But it turned out that freedom of the press meant freedom for those who owned one. The wealthy and powerful dominated the channels of speech. The privileged had a megaphone and used free speech protections to immunize their own complacent or even hateful speech. Clearly, the time has come to denounce the naïve idealism of the past and offer a new movement, Speech 2.0, which will pay more attention to the political economy of media and aim at “free-ish” speech — the good stuff without the bad.”

I am delighted to have the chance to respond to The Paradox of Open, a provocative and incisive essay by Paul Keller and Alek Tarkowski. This is an important contribution, and I have tried to give it the thorough assessment it deserves. Paul and Alek have spent the last 20 years tirelessly creating infrastructures of openness to make our world better. They are insightful policy analysts and dear friends (or at least they were, before I wrote this essay). Unfortunately, in this case, they are also mistaken. Not entirely, of course. There is much to agree with in their article, and they shrewdly outline some of the biggest challenges we face. Yet there are also errors, some of which go to the accuracy of the diagnosis while others cast doubt on aspects of the proposed cure.

The Paradox of Open is also symptomatic of a larger debate. It is the clearest and most thoughtful statement of a currently popular set of criticisms of the open movement. We owe Paul and Alek a debt of gratitude for bringing those criticisms together in one place, making clear their assumptions and, I would argue, their significant errors. In what follows, I try to acknowledge that gratitude by thoroughly – albeit humorously, satirically, and sometimes tongue-in-cheek – disagreeing, both with their article and with the larger Zeitgeist I believe it reflects, albeit in a much more thoughtful form.

What is the open movement? Paul and Alek never fully describe it. I’d say that, at the very least, it is a Venn diagram with two intersecting circles.

The first circle is the movement to enable a series of privately created sharing commons, the most obvious examples being i.) Creative Commons licensed content: from scientific articles and encyclopedias to photos and music and ii.) free (and, for some, open source) software. For Benkler and Lessig, this “commons-based peer production” offered intriguing possibilities for increasing the spaces between “work” and “play,” “the market” and “voluntary sharing,” spaces in which people could both make a living and find greater satisfaction in a less hierarchical and more democratic economy. For others, these open licenses were merely tools to solve some particular task – making state-funded scientific literature into a commons that all could access without permission or fee, for example, or providing interoperable, customizable free educational materials to the world. Finally, a series of authors claimed that the importance of the commons extended far beyond the world of open licensing: our economics and property theory had dramatically undervalued the contribution of the public domain and the commons to mainstream economic activity and innovation, skewing our policies in the process. We had property theory but no commons theory, property rights activism but no activist movement on behalf of the public domain. And that point leads us to the second part of the Venn diagram.

The second portion of the open movement was built around the fight for the open web, for an open global communications architecture. That open web would have layers that were common property – its protocols, software and some of its content – but the key was that this would be a decentralized network, not controlled by a single entity, whether state or private company. The reason this movement had a kinship with the first circle is not merely the role of the commons in allowing the layers of the web to exist, but the fact that the principal initial threats to an open web came from copyright policy. Copyright nearly killed the open web, in fact. Until the 11th hour of international decision-making on the subject, copyright law in both the US and the EU was going to make all intermediaries on the web, from search engines to internet service providers, liable for all copyright infringements that traveled over their networks, whether they knew about them or not. “But that would make Google illegal,” my students object. Yes, that was the point. The goal was to strangle the open web at birth.

That plan nearly succeeded, and attempts to use copyright to control our communications infrastructure, our technologies, and to protect incumbent monopolies, continue to this day. As the web matured, this part of the movement developed into a series of efforts to protect open networks, sometimes successful as with SOPA/PIPA in the US, sometimes unsuccessful as with the EU’s awful Copyright Directive, sometimes regulatory, as with common carrier and net neutrality initiatives, sometimes populist, as with the right-to-repair movement – a spin-off from the original copyright debates. The rise of walled gardens of private content delivered through apps – Facebook, Instagram, Youtube and so on – tilted power back towards the new incumbents and the open movement has fought back against their attempts to use copyright, technical protection measures, terms of service and bogus cybercrime accusations to maintain and extend their monopolies. Plus, the open web is still always there as a vital resource. We should not forget about it.

That is the way that I understand the openness movement, though it compresses into three paragraphs something that needs books, and glosses over vital aspects like the access to knowledge movement, the government data fights and so on. Ok. How is Open doing? Not well, it turns out, at least according to Paul and Alek. The Paradox of Open, which I will refer to from here on as Open, has a number of key premises.

  1. The open movement was characterized by a “belief in openness and free knowledge” using “networked information services and new governance models for the production and sharing of content and data.. to build a more democratic society, unleashing the power of the internet to create universal access to knowledge and culture.” “For us, such openness meant not only freedom, but also presented a path to justice and equality.” Unfortunately, “the open revolution did not happen” as planned, though there were isolated successes, such as Wikipedia and open access scientific literature.

This seems right. Openness as a path, sure. I was unaware that “a revolution” was scheduled and failed to transpire. I am almost glad, because I would have had nothing to wear! But so far, so good.

  1. However, the promise of the open web has been subverted by the unexpected rise of monopolistic private platforms that appropriate and subvert the language of openness while robbing it of its emancipatory potential. Indeed a strategy of openness may actually help the new oligopolists. In “an information ecosystem dominated by a small number of platforms, open resources are most likely to contribute to the power of those with the best means to make use of them.”

This is true but incomplete. I’d say that the rise of monopolistic private platforms was exactly what the open movement always feared. More importantly, the analysis should be relative, not absolute. Is open better or worse than closed in such an environment? The question isn’t whether the powerful have more power than the powerless (duh.) The question is whether they are aided more by an ecosystem of open resources than they would be by an ecosystem of entirely closed and proprietary resources. I cannot stress this point enough. Do you really think that a world of copyrighted content, doled out in controlled ways over a network like AOL, is more egalitarian and free?

The same is true of network architectures. The walled gardens from which many receive their content are deeply problematic, not least because they are an example of what Cory Doctorow calls “Chokepoint Capitalism.” Keller and Tarkowski are correct on this point. Of course, chokepoint capitalism tried very hard to kill the open web, and nearly succeeded. The fact that the open web exists at all is in some small part due to a battle fought by the open movement, one that continues, but goes unmentioned in this article. That omitted discussion of the past might have benefitted its analysis of the political economy of the present media landscape.

True, having failed to make openness illegal using state power, the oligopolists are now trying to make it irrelevant using private power, network effects and hard-wired filters. This is one of Keller and Tarkowski’s central claims and it is correct. If I were looking for solutions to that problem, I wouldn’t necessarily imagine I needed a revamped Open movement. Instead, I might think antitrust, competition policy, interoperability mandates, better privacy regulation and a popular movement towards a more decentralized political economy and a less captured bureaucracy in Brussels and Washington were my best bets. Trying to cram those movements – fractiously diverse, important and significant in their own right – into the Openness movement seems likely to distort all of them, without gain to any.

  1. Some of the blame falls on the open movement itself, because it had failed to realize that openness would not have universally positive results. Indeed, openness is now part of the problem. “As advocates of openness, we have largely failed to take into account the negative externalities related to the permissive sharing of all kinds of information. Today, this situation contributes to the power imbalances that we observe.”

Not realizing that openness could lead to bad outcomes as well as good?! Those open people were really stupid! A sneaking suspicion starts to rise in the reader that a caricature is being created. Again the question is posed wrongly. Yes, free means free – including uncontemplated uses, some of which we like and some we do not. Would a regime that made permissive sharing of information difficult or impossible have produced fewer negative externalities?

  1. Putting the nail in the coffin, openness may no longer be cool. “Even worse, in the dominant discourse about technology – with its attention to privacy and data protection – Open is increasingly seen as a negative property of information ecosystems. All of this points to the current limits of Open as a normative basis for a movement that seeks to achieve social progress.”

It is worth noting that strikingly similar things are now being said about the ideals of free speech, and even democracy, often by the same group of people. Readers will differ on whether those criticisms, or the norms they attack, are good or bad. Still, measuring any norm of procedural, or platform, openness – from free speech, to open content to democracy – by whether it automatically produces some particular substantive vision of “social progress” is at least contentious enough as a philosophical matter that it should be flagged.  We don’t say “I am for free speech, as long as everyone says stuff that does not offend me.” (Actually, sadly, lots of people do say that, but they may not understand what “free speech” means.) Once again, the question has to be comparative. Open systems – free speech, democracy, open content, open science – will sometimes produce results we do not like. That openness, of course, will be used by the powerful as well as the powerless. There will be cruel speech, bad democratic decisions and uses of openly licensed content with which we disagree. Thus, it is very easy to blame openness. But the key question is the alternative. Do you think we would be better off with censorship, dictatorship and a proprietary world of information sources?

The privacy point seems like a red herring. What is the negative privacy impact of a copyright owner choosing to share their work with the world under generous terms? It is also worth noting something our best privacy scholars have stressed again and again: property rules – whether open or closed – are singularly poor privacy tools. A screwdriver isn’t “a bad hammer.” It is a screwdriver.

  1. “Openness no longer provides a more general vision of a more just and egalitarian digital society.”

One must pause and ask whether anyone was dumb enough to believe that openness, by itself, could ever be a “general vision of a more just and egalitarian digital society.” Isn’t that like saying “strikingly, environmentalism no longer provides a general vision of a society devoted to ending structural racism”? “Why is the slow food movement silent about the threats to our architectural heritage? #SlowFoodScandal!”

To be fair, Open is not alone in creating this straw man of openness. The standard version is something like this: “naïve technolibertarians once preached that technology alone/openness alone/free software alone would deliver us into the promised land, but that now the scales have fallen from our eyes and the complexities are revealed.” I don’t object per se to the creation of straw men. The British have a lot of fun burning them during a deeply problematic November holiday called “Guy Fawkes’ Night,” and they can also be used to scare away birds. But if the straw man is central to your analysis, it can make your conclusions seem questionable.

  1. Google might actually be evil. No, dude, I am not kidding! “[The] new platform intermediaries have mainly been seen as allies in the fight against the earlier, closed information intermediaries. We need to acknowledge that the landscape is far more complicated today.”

This is Paul and Alek at their best. Of course Facebook used the architecture of the open web to allow it to compete with and supplant Myspace. And of course it then tried to make sure it was “the last social network” by buying up all potential competitors, unscrupulously exploiting private data and baking network effects into code so as to pull the ladder up after itself. “Openness for me but not for thee.” Of course. Yes, it was once true that “Google paid Silicon Valley’s legal bills,” Yes, it was once true that it and other platforms like it – out of self-interest – fought for a lot of things that also benefited consumers and, more importantly, citizens. That sometimes still happens, but often it is the reverse. That technological political economy was never going to be a stable equilibrium. If anyone believed it was permanent, Open is a wake-up call.

  1. “Most of today’s sharing of cultural expression takes place on commercial platforms. In these ecosystems, free licensing – the principal tool of the Open movement – is largely useless and at best serves to signal an ideological position without practical effects. Coded functionalities provide greater gains for creators and users than legal tools do, while the right to remix has been secured by means other than flexible licensing – for better or worse.

This is one of the most important insights of the essay. Paul and Alek are making a vital point about licensing inside the walled gardens. We wanted flexible licensing tools that would enable creators to share with strangers, and make money if they chose to do so. Those tools now exist, albeit in a form that’s far from ideal. Creators on TikTok and YouTube are making money, sharing stuff they create, and doing so in a relatively frictionless way. The terms are often onerous and the platforms use anti-competitive terms far too often, but there is now a functioning ecosystem. We need to move on to the areas where we are needed – speeding up scientific research, creating giant open datasets for AI projects that are available to all, making open access mandates a reality rather than a promise and enabling global access to high quality educational resources.

  1. “Today, the copyright wars are almost over.”

“Well, slap ma’ knee!” This is fantastic news. No one tells me anything! I must have been distracted from the copyright wars being over by copyright being used, again and again, to impose barriers to entry into digital markets, solidifying the dominant control of the platform providers! (Weird. I had thought that was something Open tells us is a key problem we must confront?) For example, the requirement that platforms have (very expensive) digital copyright filters – first in Europe, but with some potential to spread around the world – makes it far harder for potential new entrants to compete.

Or how about the current proposals to slash the copyright-safe harbors that protect, not just the platform intermediaries, but much of what remains of the open web? I am so glad I need not worry about those! Presumably, I can also say goodbye to concerns about scientific publishers using copyright as their main weapon to prevent the efficient searching, indexing and neural networking of scientific information? Great. What about copyright technical protection measures being used as one of the principal anti-competitive tools of companies fighting to destroy the right to repair, and monopolize all the markets around their goods – from cars, tractors and printers to medical equipment – hurting both workers and consumers in the process? I don’t need to worry about that either? This is some feel-good stuff right here!

I jest. The serious point is this: Open – and it is not alone – is so keen to move on to a brave new, post-copyright-policy, world, that its rhetoric thoroughly distorts our current political reality, a reality in which the “old” concerns are very much live. Saying, “today, the copyright wars are almost over” is obviously wrong. My guess is Paul and Alek would admit that, if pressed. But it is also symptomatically wrong: Open is far from alone in claiming that the copyright wars are over. More importantly, it is wrong in a way that has significant implications not just for speech and science but for the very communications architecture and political economy on which Open (rightly) tells us we should focus.

I began this essay with imaginary paragraphs, versions of Open for the movements for free speech, democracy, and the Bible in the vernacular – all prior struggles for some instantiation of the idea of openness. Each of those paragraphs contained a truth and an error.

The truth was that we always, always need to focus on how a given regime will play out in an unequal society, in which disparities of power, wealth and access will distort results. Kudos to Paul and Alek for saying that here and saying it clearly. “It’s the (political) economy, stupid!” should be our watchword. If Open has an enduring legacy, it will be to have made that point.

The error was in thinking that, when one picks openness, one can pick “only the parts of openness I like.” This is where I take aim more at the general Zeitgeist than at Open in particular. A long time ago I wrote a book in which I claimed that, as a deep cognitive matter, we have an “openness aversion,” a “cognitive agoraphobia.” This is a bias, not an error. Why not an error? It lets us see with remarkable accuracy many of the problems that some new regimes of openness will create. These are real problems, to be clear. Free speech will allow hateful speech. An open internet will allow spam, porn, hate and misinformation. Democracy can turn into a nationalist frenzy or rule by a bigoted mob. Openly licensed content can be used to further goals that its creators might not have envisaged or welcomed. But our agoraphobia leads us to underestimate, or to use the Bush-ism from my title, to misunderestimate the benefits of that same openness, or of a movement that is focused on enabling it.

Twitter is more closed than the open web. But can you imagine Black Lives Matter or #Metoo in a 1990’s world of newspapers and TV stations? Run by people who look a lot like me? Yes, in the same breath and by the same token, we get vaccine denial, misinformation and hatred. We knew we would. The bet on openness is not a naïve bet. It is not a bet that openness solves all problems or produces – ipso facto – truth and justice, still less the version of truth and justice that my particular tribe or ideological cadre favors. It is a belief that, in the long run, open systems are better for the human race. But the long run is …. long. And the Zeitgeist is impatient.

Each wave of openness – universal franchise, free speech, the movement for an open web, open access content – helps to solve one set of problems and immediately focuses attention on others, from hate speech and demagogues preying on the naïve, to fake open access journals and pumpkin spice latte memes. And then we have to fix those problems. (Sometimes, openness will also offer us solutions. Open access peer review. Water-hole algorithms. Fact-checking on open data. But not always.)

Sometimes, the “problems” turn out not to be problems. Will we look back on today’s anguish over open content being mined to train neural networks and marvel at how blind we were to the importance of huge, open datasets for democratic, transparent AI? Will we say that the mining of open content is vital if we want models that are less biased than those trained on smaller proprietary datasets? Will we think that open datasets are also vital if we care about barriers to entry in the new world of the data-rich and data-poor? (Remember, that may be the single most important generative inequality in the market of the next fifty years, the one from which an entirely skewed new political economy flows. And you want to make it harder to have open datasets?) So is it terrible that neural networks are scraping open content? Maybe. Maybe not. The progressive Zeitgeist has leaped to a conclusion. “Capitalism! AI! Big Data! Exploitation of open content! Bad! Open is bad!” Me? My strong sense is that knee-jerk popular opinion is completely and embarrassingly wrong. But I don’t know for sure. And neither do you. Refashioning the open movement as if you did might not be a great idea.

Now, if your open movement was feeling tired and unfashionable, like last season’s clothes pushed to the back of your closet, you could try and “modernize” it by incorporating whatever set of complaints people have about today’s world into the vision of openness itself. “I can make that Miyake dashiki cool again!” So if you are a William Jennings Bryan populist (he ran against elite-control of politics, but also against the gold standard), you could have “Democracy 2.0! (Now with added currency reform!)” or if you are a worried free-speech-activist, you could have “Free Speech 2.0. (Now with added filters for speech frowned upon by my demographic!)”. But what you’d probably get was a movement that wasn’t very good at being open, and also wasn’t very good at being focused on currency reform, or harassment, or privacy, or AI, or competition. Plus, rhetorically, you’d feel the need to say things like “the copyright wars are almost over,” and in the process you might blind yourself to the things the ‘tired old view’ actually did very well.

It is easy to be critical. If I were writing The Paradox of Open, what would I propose for the open movement in the 2020s? Something that keeps us to our core ideas and skills, but adjusts to the current world? Three projects leap out.

I don’t want my critiques of Open to take away from its insights, or the contributions of its authors. The irony is that Paul and Alek personally have done more for the open movement than almost anyone I could mention. They are genuine heroes and that statement is not hyperbole. Their essay also gives us much to think about. For sure, we need to think about platforms and network effects – indeed, a focus on the dangers of network effects and communications architecture was where the openness movement began, a point that Open could be clearer about. But who cares about the past? What matters are the positive visions of the future we create based on our story about that past. Perhaps the copyright wars are really over. Perhaps we can pour all the hip issues du jour into a single brimming pumpkin latte of Openness 2.0, and yet not spill a drop of nuance. I think the smart money is not betting that way, but I have been wrong many times in the past. Given that note of humility, when I see Paul and Alek next, the bar will be unequivocally open, but the bill will be paid by me.

James Boyle is the William Neal Reynolds Professor of Law at Duke Law School. He was on the founding board of Creative Commons and is the author of The Public Domain, Shamans, Software and Spleens,  Theft: A History of Music, Bound By Law and many other books and articles.


We asked leaders and experts from the broad open movement what the Paradox of Open means to them and how to address the challenges that it poses. This essay is one of the responses. 


Read the other essays

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