The Monetization of Behavioral Property

I. The Mystery of the Blue Underline

One time I created some HTML documentation for a project I was working on, and
made the very bad decision to format a particular part of it using a blue 
underline.  I watched in horror as a prospective user tried to click on
on the blue underlining.  It was one of those "aha" moments:  I realized that
the user had been *trained* to click on blue underlines wherever he found them--
that blue underlines he could click on were part of his expectations, and that
as a developer I had to account for that expectation in my interfaces.  I was
no longer free, if I cared about usability, to use blue underlines any way I 
liked.  He had this set of expectations because he had been exposed to a particular
kind of software, a browser, in a particular context--indeed most likely in the
context of exactly one product, Microsoft's Internet Explorer.

The Blue Underline is the prototype of something we know better as "Intellectual
Property".  I do not believe that present patent law or any other form of IP
Law will allow someone to capture "The Thin Blue Line" any time soon.  Or perhaps
it will.  IP at any moment is a social compromise between competing interests,
settled by the political and legal processes that regulate our social life.

But, as a programmer, that aspect of IP doesn't matter.  I am not *free* any longer
to program as if Blue Underlines were free for the taking.  "Code what thou wilt
an thou harm no IP" is not enough.  Behind IP is a set of social realities (I
realized) that make Intellectual Property possible and valuable.  I call that
social reality the existence of "Behavioral Property" (BP).  Behavioral property
is a bundle of behaviors, trained by exposure to specific technology or otherwise,
that renders user (human) behavior predictable and controllable.  As such, it
is *potentially* matter for the mine/thine distinction we call property, for
the granting of monopoly rights, for corrupt politicians or evil corporations to
fight over--all the rest that constitutes the "IP" battle.

In other words, Intellectual Property may be a fiction or ephemeral epiphenomenon
of the legal system and its balancing of the commons vs. individual rights, in
the arena of politics.  But IP has what ephemeral reality it has because it is
based in a *fact*--and that fact has nothing to do with "rights" over bits, or
"the nearest thing to patenting an idea" or other commonplaces of technogeek
rants.  It has to do with a deep social reality and history--the perhaps
lamentable reality of noumenal Behavior Property, behind the phenomenon of IP.

In Sir Francis Bacon's sense, IP is a *schematismus*, while BP is the Form behind
it, and fair use is the *processus*.  (If you don't know what I mean, drop "Harvey Wheeler" 
and "Sir Francis Bacon" into the Google search engine).  IP is a logical reality
that explains legal phenomena, but potential IP Law is drawn from a vast reservoir
of unwritten custom, Programming Common Law, which constitutes the New Social Law 
of the technological order.  Those laws are grounded in human nature and natural 
history, not in the archival artifacts themselves.  Certainly, there are no
Platonic "patentable ideas" that are being threatened.  Richard Stallman need
not form a new Friends of the Forms league to stop IP--as long as BP exists,
IP will flow from it as a social reality.  The Political Problem (in my analysis)
is not to frame eternal wars over IP, much less using the tools of word-control
such as prohibiting the term, but addressing the social reality that BP and
technology together create an unexpected threat to the civil constitution of

The Medium is the Message, as Marshall McLuhan taught us, but to an increasing 
extent The Tool is the Behavior.  The intuition that "Software is Law" is part
of this.  More and more, citizens are limiting their behavior to "what the computer
says"--or more precisely What the Tool Allows.  Who controls the Tool, controls
the Behavior.  

This is counterintuitive:  the most trivial aspects of tool behavior are the most
compelling.  No one set out to create "valuable IP" by carefully crafting The Blue
Line and enshrining it in code.  Like the Common Law, the cattle grazing rights
in the town square just happened.  One day, they were valuable and the Magistrate
allowed the Lord of the Manor to enclose the commons.  No matter?  Grazing places
aren't scarce.

II. Behavioral Property

Problem #1: if blue lines are so trivial, why are they so valuable?

The essence of IP is not its value, but the value of its triviality.  The color
blue and the notion of underlining are simple ideas, and their concurrence shouldn't
be as important as it is.  What makes it important is not the blue line at all--
it is the training (and control) of behavior that it represents.

As a business, I may wish to control or at least influence or at least know about
how persons follow hyperlinks.  Information is valuable, so is persuasion, so
is control.  Something like The Blue Line is just the ticket--a large population,
all trained by circumstance to click a blue line.  There's social engineering for
you.  What else?  The exact look and feel of the GUI, down to the most minute trivia
of how dialog boxes work, how many clicks.  All these are regularities I can exploit.

The IP is trivial, but the BP behind it is profound.  What if I am deprived of my
right to use the Thin Blue Line?  Have I not lost a very important freedom?  That is,
I have lost the right to make a usable hyperlink.  

Intellectual Property in conjunction with techonology is dangerous (or more precisely
politically potent) because Behavior is now saleable.  That is, Behavior can
be monetized by controlling Intellectual Property.  BP is true property--a good,
a social capital--in a way IP will never be.  IP is just a monopoly, letters patent,
or a restricted right in pre-existing Behavior Property.  BP is grounded in human
nature.  It is what makes Property possible.

What is Property itself but a predictable set of social behaviors with regard to
things?  It is founded on the mine/thine distinction, which encodes how things
may be used.  Everyone has "monopoly use" over some property.  Some property has
shared or common uses.  Some community property is so strategic that it is a tempting
target for speculators, entrepeneurs, and corrupt politicans.  

Behavioral Property is a social reality that encodes "Potential Social Control".  It
includes Tradition, Culture, Education, as well as more recent social constructs
such as Advertizing, the Media, and Software Use [as a human-machine interaction, not
as artifact].  Any attack on Natural BP Rights indirectly through legal IP now
threatens your Natural Right to do what you like--it affects the constitutional
balance between socially controlled behavior and liberty.  Technology, in sum,
introduces new forms of potential social control, without introducing constitutional
guarantees to prevent actual social control.  In the absence of such prevention,
the market attempts to monetize the "new property".

The traditional response to a constitutional imbalance is some form of 
Civil Disobedience and/or political opposition.  This is exactly what we are
seeing in regard to "IP".  What we have yet to see is a general theory of Behavioral
Property (hypostasized social actions) that will inform our political choices.
The battle, so far, has been positioning and tactics, but without strategy.

Several objections have been framed against Intellectual Property.

(1) IP challenges the academic realm of ideas.  It makes the Ideas of the Intellect
into Things.  Academic freedom, freedom to tinker, scientific free sharing of information,
and programming freedom, are all under attack.

(2) IP challenges our freedom to share, to erect and protect an intellectual commons
from the marketplace.  A novel challenge to a long-standing ethical good (sharing code,
volunteerism, the commons) is itself harmful.

(3) There is no rational and equitable basis for granting monopoly rights in IP, or
else the existing basis has been breached and the essential bargain (and the highest
good, the *salus populi*) has been lost sight of.

These are powerful arguments, and reasonable, but they do not explain why (being so
obvious) nothing has happened to address the wrongs.  It could be, and is often alleged,
that those harmed are politically impotent, or the system corrupt, or that the public
does not understand the potential harm.  These are not novel complaints--they are
exactly as old as Democracy.  They are the complaints of intellectuals as a class.

However, it is also possible that the people and businesses are wise in the ways
that affect them, and the intellectuals, geeks, and academics have simply failed
to analyze the real problem.  IP is a pseudo-problem, because it is a symptom not
a cause.  It is a negotiation process, not the subject of the negotiation.

Geeks and technocrats tend to believe that the freedom rights inhere in the bits themselves.
As if information were the bits themselves, rather than the access to those bits by 
the mind.  Bits and hard drives and networks are things, of course, and so property.
But it matters little to the bits whether they encode a blue line or a green one.
What makes it a big deal is the expectations, past history, training, hysteresis,
of the user.  Software is Hypostasized, Potential Behavior.

Business does not care about the intellect or the bits, except as it pertains to
making money.  Business does not care what the user does with the property, unless
it can be controlled and milked for revenue.  In other words, business might pay
for certainty and predictibility, and especially for a certain, predictable revenue
stream.  But otherwise the fears of intellectuals, and their sense of impotence
in the face of "The IP threat" are ill-founded.  The threat is political, not
intellectual.  The threat is in no way specific to intellectuals, nor targeted at
them, except to the extent intellectuals are among the educated voters who are
nominally sovereign in the Republic.

In answer to the frequent objections of intellectuals, businesses might correctly 
point out they created the market by spending money.  Microsoft spent advertising
revenue to create the alleged trademark Windows.  They may or may not be granted it
at law, but it is reasonable for them to try.  The political process and the law
must be maintained so that the Microsofts of the world can try to trademark Windows
and the Lindows of the world may try to stop them.

Behavioral Property (and thus its monetization) is thus similar to a business's goodwill,
its good name, its brand name, or a trademark.  Such property (but not necessarily
property rights in it) can be created by advertising.  Campbell's may make lousy soup today
but their brand name, and the precise design of their soup can, is quite valuable
because consumers raised in the 60s were exposed to a *history* of advertizing.
This sunk cost would be recognized in accounting if the brand were sold.  It is property,
or capital, even if intangible.  It is *valuable* property because of U.S. IP Law
among other things.  However, it is Naturally Property even in the absence of any IP Law.

Thus, Microsoft and SCO may have outrageous IP claims, but not wholly fictitious ones.
Even the Law itself may become a Behavioral Property, as the expectation of law suits
itself affects behavior, and may commoditize the BP.  This self-reflective property makes
the incipient market in BP much like the stock market--the price includes reflection on
the possible price.  BP can be monetized, but there is no guarantee that a social system
can make it *stabily* monetized.

The Thin Blue Line may well outlive Microsoft, HTML, Browsers, and the Web.  QWERTY certainly
has outlived the 19th century machines and the companies that made them.  If WIPO
sells QWERTY to General Electric tomorrow, we will all be inconvenience.  Perhaps
Natural Rights would be violated, even, and Civil Disobedience occur.  There is no
IP I know of in QWERTY, but the BP is immense, part of our common social capital
that allows, among other things, efficient production of keyboards, and faster
communication--not as fast tying as theoretically possible, but quite as fast as really
possible, given hystersis and the real past history.

Concluding this section: the notion of Behavioral Property may help with the 
allocation problem, by identifying the contours of the disputed good more precisely.
The dispute is not over "ideas" but "behaviors"--potential and expected actions, or
uses of software, and the ability to predict the same and trade on that information.

III. The Mystique of Social Control

If behavior can be created, or scripted, by technology, a puzzle remains as to
why people do not simply throw off this shackle.  After all, nothing prevents
me from being a Contrarian Programmer who uses the princple of Most Surprise to
write unusable software.  My complaints about constraint and freedom have to do
with an irritation at users.  They can and do click on the blue line.  Silly lusers.
They expect my software to work like Microsoft's--so much the worse for them.  

In other words, the intersection of my quest to create usable software runs square
against my users' sinful past.  I must code for bugs and defects, as well as function.
I must mimic rot.  Why should I be allowed to have it both ways?  To throw off
the rot when it pleases me, and to demand the right to copy it when it pleases me.

This mystery is usually addressed under the rubric of convenience.  The public does
not care about freedom (or else they would ditch Windows and use Linux, demanding
that Linux be different from Windows, so that they might better escape the evils
thereof).  They are too lazy to be bothered to embrace freedom--too bad for democracy.

This is not a trivial question:  how virtuous (non-lazy) do persons need to be,
in order to deserve freedom?  The Natural Law answer is, exactly virtuous enough to be
able to overcome threats to it in fact.  The balance, then, starts with a threat assessment.
No paper constitution or IP Law compromise can give a finer answer than Nature,
and the Law of the Jungle.  An Eye for an Eye, a Click for a Click.

What new threat is there?  Technology can script or control behaviors by

(1) providing more copious and accessible information about consumers (monitoring)

(2) permitting the use of information to make better and more accurate prediction,
thus eliminating variability, and lowing the cost of control while raising the yield

(3) providing actual mechanisms of control, enforcement, and coercion
Imagine, if you will Software in conjunction with a Taguchi Method for conducting
social experiments--shocks to the system, measured response, minimum variation and
maximal responsiveness on the next iteration.  Technology now makes this feasible.

The Quality Society, from the standpoint of social planners, is one in which behavior
is predictable, non-variable (conformant), and maximally aligned with the ends of the planners. 

Beyond First Order Quality Control of society, Behavioral Property created by Technology
provides the social atoms, the behavioral memes, that permit a more reflective social
engineering.  IP Law is first order, but what about second order control?  Why not 
make Law itself malleable and subject to control--or more precisely, the Law extracting
process.  We are back to Bacon: 

1. Invent Scientific Method
2. Start Royal Society
3. ???
4. Profit

The genius of a Bacon or a Stallman is their social engineering, not always their 
first order science.
Bacon realized that a noumenal Common Law could change *any* constitution.  Law is Process
-- The Tool is the Behavior.  With two such example we can, indeed, abstract to the Third Level
of Revolution Engineering:

1. Create a Reflective Meta-Process
2. Release into the Wild
3. ???
4. Watch Resulting Revolution.

Such, then, are the principles of Social Alchemy. They are grounded in the relation 
of control mechanisms to force.  The control mechanisms are bounding activity, 
the force is unbounded potential for violence.  Social Control (government)
prevents systemic violence or disorder by creating a monopoly of it.  This
is the essence of the control we call "the constitution of civil society".  Bacon's
genius (legal and scientific) was to create social control mechanisms that were
capable of controlled change of itself--of evolution, or periodic self-administered
revolution, or "paradigm shift".    A self-healing constitution using "feed forward"
coupled with technological discovery.  Modernity has been a wild ride on this
particular feat of social engineering.
It is widely believed that monopoly of IP will lead to disorder--the violent use
of it to shake down society for profit and enslave Academia.  
This is the danger to society of *any* monopoly over a strategic property
or concentration of power at a strategic point,
or even of rigidity in the regulating mechanism that manages constitutional change.
This is a reasonable fear, but not the only possible outcome.  Political force
calls opposition into action and generates its own solution--if the mechanisms are
not broken!  

The locus of this fear has to be in the use of technology for Social Control.
The novelty of the technology, and the abstractness of the threat, are alleged to
make the monopoly control if IP uniquely threatening.  This is only true if 
the monopoly can damp down Civil Disobedience--as well it might, by censorship,
increased monitoring and successful prosecution, and so forth.  However, the use
of information technology to damp down social variation will not only increase social conformity,
make us slaves of a concentrated media, manipulate our passions and desires for economic ends,
reel in outlier dissidents, and provide new mechanisms for oppressing dissenting
force or disorder.  It may have unintended and unforseeable effects as well.  Does the internet
help or harm terrorism?  Likely both.  "Security" is a system property, and cannot
be predicted by tracing cause and effect from nearest neighbor to nearest neighbor.

In all likelihood we should let the political process run its course and see what
happens.  This does not mean Laissez-Faire.  We may well wish to break up strategic
monopolies on IP or unusual concentrations of power, just on principle.  Behavior
Property is a new thing, and its equitable distribution is not obvious in Law.
It is an extra-constitutional question that affects constitutional arrangements,
very much like the question "who's a citizen"?  The system itself cannot answer--
only nature, ethics, or some principle outside positive law.  In the last analysis,
"Trademark" is whatever Statute Law says it is--but Nature will only permit the
copyrighting of Fire and similar fictions to a limited extent.  We need to go back 
to the IP equivalent of "Calvin's Case" (1608) on this one.

The Internet is very close to being an Analytic Engine for Social Control.  What
we call civil discourse will migrate to this medium, and so will the political
behaviors that filter information, communicate it, and actuate the parts of the
body politic.  "Welcome to the Internet, the Brain of Society".  More precisely,
the archive mechanism, or social memory.  A Bureaucracy
is a terrible thing to waste.

This situation is complicated by the fact that the Internet no longer exists.
By Internet, I mean of course a Network of Networks connected by gateways.  The Internet
has changed its constitution several times, becoming confused with the Web in
the process.  Once, it was NSF Net + BIT Net + HEP Net an so forth.  Then it became
more or less co-extensive with a single IP-based Network--where the writ of IP protocol
runs, there runs the 'Net.  Now, it will become something else.  HTTP works over IP
still, but a new social reality has entered the equation--the *Behavioral* internet
is (1) only the Web (2) only with a browser (3) only with IE on a windows machine.
In other words, there is a bifurcation between The Internet (IP protocol, many others
esp. HTTP), and The Captive Web (Microsoft only).  

The behavioral intenet has been successfully captured, while the intellectual-property
internet has remained free!  You can still use Linux and Mozilla to view the latter,
but less and less the former!  Can there be a clearer disticition of BP and IP?
The BP is moving under our feet, "stolen" (if you can call it that) by Microsoft.
The IP is left behind.  What Microsoft takes with it is the Control Grid, the image
of the Electrical and Network Grid as it used to exist.  Steal the Map, not the Territory!
(Because if you control the Map, the People will not be able to navigate the territory)

This cuts to the core of our second mystery:  

Problem #2: Why is DNS valuable?

Clearly it is not the mechanism (IP in the protocol and legal sense).  It is the behavior
that if an announcer says "go to" then people will boot up a Windows [tm]
computer, go to Intenet Explorer [tm] browser, and type just that.  Microsoft
has the BP, they have monetized it, they do not need anyone else's IP, least of
all Linus Torvald's.

All Social Control should be so easy.

The asset, the property to be monetized, is the social behavior of using Windows--
this is Microsoft's goodwill, their status.  Legally, it cannot be challenged in any
meaningful sense, unless they acquired it unlawfully.  As a social reality, it is
presently legitimate and will remain so as long as Microsoft can maintain its
self-determination and sovereignty in this arena.

DNS is part of Behavioral Property because it is a system that makes web navigation
predictable.  People use it, and businesses and governement covet it, because of
this value.  You can clone DNS, but you can't replace it--unless you can convince everyone
to use the *same* something else.  DNS is a "natural monopoly"--and our legal intuition
is that being property it must (or might) belong to someone.  The monopoly has little
to do with Intellectual Property connected with the DNS engineering artifacts themselves, 
i.e. the standards, RFCs, protocol, code.

Those who would unseat Microsoft must understand well the task:  it is not to
stop "embrace and extend" in the standards arena, or to stop unfair competition,
or win another browsers war.  Those are tactics (and likely losing ones).  It is to
address the constitutional defects that allow Behavioral Property to be distributed
inequitably, by money and influence, and not by Natural Right.  What can be
more Natural a Right than to behave how I wish?  What incursion can be more threatening
than to have my fellow citizens all behave differently from me, on cue?

Technology is the cue. The Tool is the Behavior.

IV.  The Danger of Google

To summarize the first three sections, technology has altered the (unwritten) 
Constitution, which we call society's Behavioral Property, and created
categories of behavior property [new methods of social control] that did not previously exist.

This destabilizes the constitutional regime, though not irreparably so.  
The main danger is that by making human behavior more easy to monitor and predict,
and by monetizing this value as Behavioral Property, that we are creating a marketplace
in law and constitutionality.  This will certainly lead to a dynamic society, but
it may be one subject to chaos and dynamic destruction.  It may be subject to hidden
or remote control, or unintended effects.  We may accidentally damp out progress
or create intolerable forces of coercion.  

Strong feedback for feedforward loops, wired into the economic, legal, and political
system, are likely to be destabilizing in the short term.  In particular, people may
jump to a shortcut solution, and decide difficult system-level questions my their
immediate interest.  Indeed, this is expected.  This is one case where getting what
you ask for may not lead to happiness!

But these are fears, not realities.  

It is by no means evident that "Behavioral Property" is all bad.  Social behaviors
become valuable when good behavior becomes a habit.  (Indeed, what I have called
BP is really no more than Aristotle's category of *habitus*, something intimate, like
clothing or my inmost thoughts, that I have, like a possession, that is customary, like a habit).

A valuable good consisting of predictable behavior is a kind of social capital.
The Free Software Foundation's GPL creates "BP" by making mine/thine predictable, 
hence useful for erecting the commons.  BP can encode good behaviors as well as evil.
Commercial BP can have an economic function that has not been appreciated.  My "Thin
Blue Line" is not only encodes a Behavior, but it encodes a "legacy Behavior".  That
is, the monetization of BP serves the useful purpose of encouraging new behaviors
that "route around" the monetized one.  Pay-per-legacy-behavior adds an economic cost
that encourages innovation.  Like the stock market, the monetization of intangibles,
of BP, will simply account for its own expectation.  There is no reason to fear this
"perfect information resulting in perfect chaos".  It is simply how such systems
work--the resulting behavior is a random walk with a certain beta, not unlike
Brownian motion.  It is absolutely predictable, and predictably unpredictable.
I like unpredictable social behavior!

My "thin blue line" effect, an atom or meme of BP, of potential and unforseen IP,
the unit to be monetized, is really just a time-shifted legacy behavior.  It adds
friction to the system, not unlike a dashpot.  Milton Friedman made a career of discovering
how "learned expectations" can influence market dynamics.  Need we outlaw dashpots?
The monetization of BP is a new process, and an old one.  It is simply the encoding
in software of learned, habitual expectations.

BP is a broad category, which includes:

(1) advertising, media habits, web browsing habits, "accessiblity features"

(2) access control and permission, "security" and "censorship"

(3) political attitudes (indoctrination) received in social settings, education,
    continuous with "morals, folk ways, mores, civility" and similar constructs
In short, BP is an expectation of habitual behavior, with an eye to monitoring and control.
It is habitual action, hypostasized or "scripted" by software, or by applications.
BP captures the atoms, or memes, by which human action, in the realm of the social,
eocnomic, legal, and political activity.  Monetizing BP means creating a (1) store of
action; (2) a medium of communication; and (3) portable social control.  It is readily
divisible and re-configurable.  In short, it creates a market of "behavior exchange"
that interacts strongly with other sectors of society.

Advertising, once considered disreputable to engage in at all [read Thomas Carlyle
or Henry Ford], was just the beginning.  Media concentration, Software-as-Law, 
and Software Patents are feared today.  Many more examples of BP will be adduced in the future.
The fun is just beginning.

Problem #3:  Why is Google so dangerous?

(1) Any monopoly on a desirable property (such as the likely searching behavior of netizens)
is potential throttle point, an entry for mercantilists.  It does not matter if
the monopolist "deserves" it, or even created the market. 

(2) axiom: any entry will be forced, any non-opposed force will destroy

(3) anyone can build a search engine, but Google has a brand name.  The brand name, not
the functionality, is important; functionality affects the "fundamentals" of the brand name
only in the long run; short-run economic behavior is conditioned on the Behavior

In other words, Google has both IP and BP, no other search engine, in the short
run, can have the same BP, unless it attracts users the hard way.  It is the BP,
not the IP, that is the property to be defended and the asset to be monetized.
Understanding this is absolutely crucial!  You cannot expect "IP Law" to settle
any question related to Natural Rights and the distribution of BP.  There is,
as IP activists continually point out, no way to make the distribution equitable--
precisely because the Law is trying to use the hammer of IP to hit the nail of
BP distribution on the head.  This is not possible within our constitutional
system, because the function of that system cannot allocate social behaviors
(praise or blame moral behaviors) that were out of scope at the founding.
The U.S. Constitution will never tell us, no matter how much legal bashing we
do to it, whether copying an MP3 over the internet for free is equitable.  *BUT*
the great well of unwritten Common Law (BP), founded in Natural Law, that lies
behind the Consitution can!

I end with a final puzzle: 

Problem #4:  Anyone can opt out of advertizing or turn off a TV.  Why, then,
does media concentration matter at all?  

Why, as Thomas Carlyle asks in his _Past and Present_, are the starving poor enchanted,
and the fields idle, even in the midst of mass starvation?  What makes a society
underutilize its own potential resources--creates slack behavior contrary to natural

Perhaps there is a social cost to laziness, and some behaviors are rewarded,
while others are penalized.  The ability to hypostasize and monetize behaviors
is new in technology, but not completely novel.  We can create Tools, and encode
Behaviors in them--that is we create Habit.  Habits have Consequences.

Meme infection.  Tag, you're it.