In Re Bilski
I’ve got an in-depth discussion of last week’s In Re Bilski case up at Ars Technica.
One of my favorite things about writing for Ars is their knack for coming up with amusing illustrations for longer articles. You can see their handywork over on the right there.
I discuss the parties in the case, the judges’ questions, and speculate on the likely outcome. My prediction is that the Federal Circuit will make some relatively minor changes that rein in the patenting of abstract concepts on the margin but basically leave the problem unresolved. The big open question is whether the Supreme Court will be interested enough to take it, and if so whether they’ll have the stomach to make the significant changes that are needed. We know Justice Stevens is, and a couple of other justices have made comments suggesting that the patentability of software is at least an open question in their minds, so there’s some reason for hope.
Also, I forgot to link to it last week, but I did a Cato Daily Podcast on the day Bilski was argued.
Tom Lee on Software Patents
Matt Yglesias was kind enough to link to my write-up of Math You Can’t Use. Matt’s commenters made some not-very-persuasive counter-arguments, which prompted Tom Lee to pen a nice re-statement of the basic argument against software patents:
the last few years have demonstrated that for many areas of creative endeavor we have massively overestimated the compensation that must be provided in order for society to continue enjoying plentiful ideas. The success of the open source movement and the continued thriving of the music industry, for example, clearly show that we, the greedy masses, can help ourselves to considerably more free intellectual output than we’d thought without endangering the whole system. We’ll all enjoy the benefits — as well as the savings to be had by not spending as many of our resources on enforcing IP laws.
Of course, how far this can be pushed is up for debate. Other fields — publishing, filmmaking, drug discovery — may not be as adaptable. In some cases I’m optimistic that the associated capital costs have or will fall to the point where creator compensation can be safely diminished in order to benefit us all. But now we’re getting into the weeds. Clearly there ought to be a negotiation around each IP-producing field to determine whether the benefits provided by restricting the use of its output outweigh the value lost by imposing that restriction.
And for software patents, the situation is extraordinarily clear: it’s very hard to find a software author who thinks they have contributed anything useful to the process of innovation, and most think they have exerted a significant retarding effect. If the ideas produced and protected under the software patent system were the sorts of novel and valuable contributions that the system is designed to encourage, one might expect to hear about them.
One of the remarkable things about the software industry is that it’s awfully hard to find smart programmers who are strong supporters of software patents. You’ll find a good number who haven’t given the subject a lot of thought, but the vast majority of those who have given the subject a lot of thought are unanimous in their opposition.
Part of the problem is a very basic lack of knowledge. The vast majority of voters—hell, the vast majority of educated, politically savvy voters like Matt’s readers—can barely explain the difference between copyrights and patents, to say nothing of making fine distinctions among types of patents. And meanwhile, there’s a wealthy and growing patent bar with a vested interest in more lenient patent rules. And some large software companies that have amassed patent arsenals and are eager to derive licensing revenues from them. The result is that it’s an uphill battle to even explain what the issue is and why it matters, to say nothing of building real political momentum for reform.
This is part of the reason that I think our one hope of serious reform is the courts. The Federal Circuit has so brazenly trampled on Supreme Court precedent that I think the Supremes may feel compelled to defend their institutional prerogatives, despite the lopsided interest group pressures. And the Supreme Court is much better situated than Congress to delve into complex issues and understand the point of principle involved. The Supreme Court is also much more responsive to elite opinion, and we have more chance of swaying a few thousand elite opinion makers than we do of educating the general public. This is one of the reasons I think Ben Klemens’s End Software Patents coalition is so important, and why I think their courts-focused strategy is probably the right one. It’s still going to be an uphill battle to get the Supreme Court to straighten out the patent mess, but our odds there are a lot better than in Congress.
Culture Clash on the Future of News
One of the striking things about the Future of News conference is the culture clash between newspaper people on the one hand and technology people on the other. The former was exemplified by the second panel, which included representatives of the Wall Street Journal and the San Diego Union-Tribune and a journalism professor. The latter is exemplified by the panel that’s going on right now, which includes people from Microsoft, Princeton’s computer science department, and a blogger affiliated with the Guardian. The former were quite pessimistic. All three of them tried to put a brave face on things and suggest strategies newspapers could use to adapt to the changing world, but all three seemed to feel that the future of news was pretty grim—that blogs and other online news sources wouldn’t be able to pick up the slack from thousands of journalists laid off from mainstream newspapers.
In contrast, the technologists’ perspective was that there was an unprecedented abundance of content available online, and that the real challenge is in filtering it all. The technologists didn’t seem to feel there was anything grim about the media environment.
Fundamentally, I think what’s going on here is that people tend to over-estimate the importance of their own profession. Newspapers in particular are used to regarding themselves as the center of the universe, so as the center of gravity in the news business shifts away from the newspaper, and monolithic “mainstream media” outlets more generally, they tend to regard this as the decline of news in general rather than a decline of a particular news format.
I’m sure the newspaper peoples’ response would be that the technologists are guilty of the same crime, over-estimating the importance of technology and taking for granted the resources required to do high-quality reporting. There’s probably some truth to this, but I think the technologists have a better sense than the newspaper folks of the diversity of new news-gathering techniques that are being developed. It’s not the case that newspapers are being replaced with nothing. They’re being replaced with things that look very different, but serve many of the same purposes as the newspaper do.
Where is the FCC’s Annual Video Competition Report?
Barbara Esbin and I have just released a short PFF essay asking the question: “Where is the FCC’s Annual Video Competition Report?” The FCC is required to produce this report annually and yet the last one is well over a year past due and the data is contains will be over two years old by the time it comes out. I’ve embedded our paper about this below.
Felten on the Future of News
JD Lasica is speaking about the evolution of media. He did a video with Ed Felten that I assume is interesting, although I haven’t actually listened to it because I’m busy listening to his speech, which is also interesting.
Forbes on “Making Social [Networking] Sites Safer”
Wendy Tanaka of Forbes penned a nice article this week on “Making Social Sites Safer,” as in social networking sites. She interviews many members of the new Internet Safety Technical Task Force that is being chaired by John Palfrey of the Berkman Center for Internet & Society at Harvard Law School. Wendy was also kind enough to call me for some comments.
Wendy wanted to know how far technology could go to solve online safety concerns. Specifically, as she notes in her piece, “The discussions have centered on whether identity technologies can make social sites safer, or whether consumer education works best. State attorneys general believe more technological solutions are necessary, but some task force members contend that identity technologies on the market aren’t adequate. And even if they were better, they likely can’t prevent every unwanted incident and they could block contact between friends and relatives.”
On that point, I told her that, even if the age verification technology worked as billed (and I have my doubts), we’d have other issues to grapple with:
“So, if he’s 16 and she’s 21, they shouldn’t talk? Maybe they’re brother and sister,” says Adam Thierer, a senior fellow at the Progress and Freedom Foundation. Thierer also says that too many checks and restrictions could turn off users and hamper advertising on social networks. “There’s only so far the sites can go before undermining their business and cutting off their customer base,” he says. “At some point, it becomes an annoyance for users.”
What I meant by that is that there is a balance that must be struck between security and freedom on social networking sites because, if lawmakers (or even the site operators themselves) push too far and add too many layers of controls, their could be adverse consequences. In particular, users could flock elsewhere, including to offshore sites that have no safety guidelines or mechanisms in place. That would be a troubling outcome that could leave site users far less safe in the long-run. As I have pointed out in my big paper, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,“Whatever their concerns are about current domestic sites, parents and policy makers should understand that those sites are generally more accountable and visible than offshore sites over which we have virtually no influence but that have the same reach as domestic sites.”
Moreover, we need to be aware of the privacy and speech-related issues that arise when governments seek for force users to surrender the online anonymity. I have written more extensively about that issue in my essay here on “Age Verification and Death of Online Anonymity.”
Finally, as I told Wendy, there is no substitute for education and awareness-building efforts as the real solution to these problems. “There are no easy technical fixes for complex human behavioral problems,” I told her. “We need to teach kids ‘Netiquette.’ ” That is, we need to do a better job teaching our kids proper online manners toward their peers while also making sure they understand what risks are out there and how best to deal with them.
Anyway, make sure to read Wendy’s Forbes article for additional insights from other Task Force members.
Future of News
I’m at Princeton’s Future of News conference. One of the more interesting people I’ve met is Kevin Anderson of the Guardian. In an impressive feat of multitasking, he’s been providing blow-by-blow coverage of the speakers, complete with multi-media. It’s been a great discussion, so please check it out.
Math You Can’t Use
I’ve finally had the chance to read Math You Can’t Use, Ben Klemens’s excellent book on software patents. It’s the clearest brief for the repeal of software patents that I’ve read, and Ben does a great job of pulling together law, economics, and computer science to make his argument. I agreed with almost everything he says, and much of it covers ground I’ve talked about here on TLF. But let me highlight a few of the things I thought were unique.
Probably the most ambitious part of the book is Chapter 3, which is a brief overview of computer science. In less than 20 pages, Ben covers circuits, boolean logic, source code and assembly language, algorithms and data structures, functions, libraries, and the Church-Turing thesis. The goal was to provide a crash course on concepts he uses later in the book. Since these concepts were already familiar to me I’m probably not a good judge of whether he succeeded in making them understandable to the layman, but it seemed pretty clear to me. On the other hand, I suspect that some of the implications of these concepts aren’t obvious until you’ve rolled them around in your mind for a while. It’s not hard to explain what the Church-Turing thesis says, for example, but until you’ve written some actual programs I’m not sure you can really appreciate its importance or its relevance to the patent debate.
One of the most interesting points Ben makes is how quickly and totally the Federal Circuit abandoned the legal framework the Supreme Court established in its software patent cases. In its landmark 1981 decision of Diamond v. Diehr, the Supreme Court held:
Insignificant post-solution activity will not transform an unpatentable principle [i.e. a mathematical algorithm, law of nature, or abstract ideas] into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection.
Thirteen years later, in In Re Alappat, the US Court of Appeals for the Federal Circuit not only allowed applicants to evade the recognized limitations on the type of subject matter eligible through clever draftsmanship, it actually held that if an applicant failed to do so, the Patent Office had an obligation to re-draft it for them, by re-writing the claims in a form that would meet the letter of the “no software patents” rule while flouting its spirit. It was an amazing bit of chutzpah.
In addition to talking about software patents, Ben also devotes a chapter to the DMCA. Ben has a funny section where, on the same page, he has a figure showing the source code for DeCSS and a figure showing the recipe for a fertilizer bomb. He notes that the latter is protected speech under the First Amendment, while printing the former is a felony. This state of affairs is awfully hard to square with either the constitution or common sense.
It’s a great book, and I encourage you to check it out.
From Indep Women’s Forum–Update on Rights
From Independent Women’s Forum, “Despite praise of a Constitution that protects the rights of Afghan Women, Afghan women continue to suffer abuse from men and society in general. Halima Karzai, Associate Director of International Policy for the Independent Women’s Forum, has written a powerful piece on the continuing problem of oppression and violence against Afghan women before and after the Taliban.”
Such reports are disturbing at so many levels, one hardly knows where to begin. First there is the comparative lack of attention to this issue by the public, the press, and in the political sphere; this appalling abuse has become background noise to which we are almost accustomed. Second there is the puzzle of how such practices begin and spread and are so hard to root out. One would think that the abuses would be instantly recognizable as morally unthinkable. One would think that they run so counter to ordinary primate biology, in which males and females have somewhat different roles and scuffle but nonetheless remain part of a whole cooperative group, that there would be some natural resistance to them. One would think that local observers would recognize the value of a more inclusive society in which their children would be more quickly lifted out of poverty in an economy enriched by the education and intellectual capital of the whole population. As in apartheid South Africa, exclusion is not only wrong, but it denies the economy entrepreneurs, managers, technologists, teachers, and other seeds of growth.
Something here has gone sadly wrong. It rather puts concerns about the exact scope of the rights of makers of mashups in a new perspective.
my debate with Zittrain on NPR-Boston
Well, I actually didn’t exactly get a chance to say quite enough for this to qualify as much of a “debate,” but I was brought in roughly a half hour into this WBUR (Boston NPR affiliate) radio show featuring Jonathan Zittrain, author of the recently released: The Future of the Internet–And How to Stop It. Jonathan was kind enough to suggest to the producers that I might make a good respondent to push back a bit in opposition to the thesis set forth in his new book.
Jonathan starts about 6 minutes into the show and they bring me in around 29 minutes in. Although I only got about 10 minutes to push back, I thought the show’s host Tom Ashbrook did an excellent job raising many of the same questions I do in my 3-part review (Part 1, 2, 3) of Jonathan’s provocative book.
In the show, I stress the same basic points I made in those reviews: (1) he seems to be over-stating things quite a bit in saying that the old “generative” Internet is “dying”; and in doing so, (2) he creates a false choice of possible futures from which we must choose. What I mean by false choice is that Jonathan doesn’t seem to believe a hybrid future is possible or desirable. I see no reason why we can’t have the best of both worlds–-a world full of plenty of tethered appliances, but also plenty of generativity and openness.
If you’re interested, listen in.
Future of News
I’m headed to Princeton’s Future of News workshop. It looks like there will be some fabulous speakers. If you’re in the New York/Philly area, I hope to see you there.
Selling out Online Advertising
Reports have surfaced that Charter Communications, a mid-sized U.S. cable ISP, is monitoring its customers in partnership with NebuAd to deliver targeted advertisements. Luckily, Wayne Crews and I have a brand new C:Spin digesting the privacy implications of advertisers tracking our Web browsing:
Online ads can be annoying. From pop-ups to flash screens, it’s hard to surf the Web for long without encountering a sales pitch for an unwanted product. A world without these ads might be pleasant, of course, but then who would pay for all the original content websites make available? Advertising explains why we can browse the Internet without pulling out our credit cards at every turn. But New York lawmakers are now considering a bill that would make this scenario a reality, spelling doom for the advertising models that could fuel the Internet’s future.
Irked by pervasive advertising, some consumers see the Wild Wild Web as a realm warranting legislative assurances that all information stays private, hidden beyond the reach of marketers without explicit consent. They prefer that we opt-in, rather than opt-out.
But an alternative interpretation of the nature of the cyberspace is that any advertiser may legitimately assemble information that has been transmitted on what is clearly a very public network.
Even Wikipedia, long funded entirely by private donations, may soon have to place ads on its popular encyclopedic entries. All the server farms and fiber optic cables that power today’s Internet are not cheap, and somebody has to pay. Ad revenues indirectly fund many of the network upgrades needed to prepare for the ever-increasing stream of global Web traffic. And since advertisers are expected to tighten their belts as the global economy slows down, effective advertising models are more important than ever. If the Internet is to realize its full potential, firms must be free to develop experimental new methods of delivering ads.
Increasingly, today’s “dumb” online advertisements are yielding to “smart,” behavioral ads. By cataloguing individualized information about a user’s browsing tendencies, behavioral advertisers like Phorm and NebuAd can guess what sort of ads might interest that person, and select which product to promote accordingly. In this model, advertisers don’t even have to record specific web addresses; rather, browsing habits are stored only under broad subject categories, like automobiles or golf. Sensitive websites like WebMD aren’t logged whatsoever. All this data is tied not to our names but to anonymous identifiers like cookies or IP address, which typically cannot be traced back to a particular individual except by court order.
New York’s Ambitious Sales Tax Law — Broader than Amazon and the Internet?
Amazon says it is advertising when it compensates New York-based websites for posting links that refer customers to Amazon.com. New York says it’s soliciting business. The distinction means all the difference in the world for sales taxes, for Amazon, and possibly even print media, television and radio.
Amazon.com sued New York State earlier this month, challenging a newly enacted law that has serious implications for online advertisements. In April, the New York legislature passed a law designed to increase sales tax revenue from Internet sales. The law is known as the “Amazon tax” because of the way it broadens the sales tax law to apply to Amazon’s Associates Program, thereby achieving the necessary legal nexus for New York to force Amazon (and other Internet retailers) to collect and remit taxes on all sales to NY residents.
A little bit of history helps put this law into context. The Supreme Court has held that a state can only impose sales or use tax-collection obligations on an out-of-state retailer if the retailers has a “substantial nexus” with the state (the Quill decision). Nexus occurs from a sufficient physical presence, which can be an office or warehouse, but physical presence can also derive from soliciting a state’s consumers via sales representatives located in the state. However, it can’t be just any sales rep, according to another Supreme Court case — in-state representatives must be “significantly associated with the taxpayer’s ability to establish and maintain a market in the state” (Tyler Pipe). Continue reading this post »
L-1: The Technology Company in Your Pocket
Inspired by the promotional brochure I recently came across, I’ve taken a look at L-1 Identity Solutions in a Cato TechKnowledge paper. Though it has better options, L-1 and its new acquisition, Digimarc ID Systems, seem likely to continue lobbying for the REAL ID Act. My concluding line may be a little obvious: “A corporate lobbying operation can do as much harm to liberty as any government agency or official.”
Some people are never happy
Broadband Reports ran an opinion piece by Karl last week discussing the rumors that Comcast will soon adopt a 250GB a month maximum with overage fees for excessive consumption.
As the piece points out, implementing overage fees runs the risk of giving FiOS (and, to a lesser extent, U-Verse) an even bigger edge on cable broadband. AT&T and Verizon, because of their last-mile network architectures, are less susceptible to congestion caused by heavy users than Comcast, with its shared cable network. AT&T and Verizon have gotten by without terminating heavy users or even charging them extra.
Yet right after Karl finishes explaining about how overage fees will change the competitive landscape, he starts ranting about the prospect of “investor pressure constantly forcing caps downward and overage fees upward.”
Competitive pressures make this scenario a remote possibility, especially as content portals serving massive files like Apple TV and Xbox Marketplace gain mainstream appeal. If Comcast wants to deflect criticism from other ISPs over bandwidth limits, any cap must be high enough to ensure very few customers even approach it. Arguably, 250GB a month is enough to satiate even power users, at least for a couple more years.
ISPs are competing fiercely to attract subscribers, so providers regularly make hay out of trivial product differences such as the “ugly cabinets” that AT&T sometimes installs when upgrading a neighborhood’s DSL speeds. Imagine the ads Verizon will run if Comcast starts charging customers for heavy use—“With Comcast, you never know when you’ll be hit with an enormous monthly bill if your kids go on a YouTube frenzy or your computer is overtaken by hackers. Here in FiOS land, rest assured there are no extra fees, no matter how much you download.” It’s not hard to see this message resonating with customers, especially those living in households with multiple Web-savvy residents.
-
Welcome.
Search
Contributors
Tech Policy
Tech News
Bloggers We Like
Our Sites
Where We Work
Categories
- 321
- Broadband and Neutrality Regulation
- Competition Policy
- Copyright
- DMCA, DRM, and Piracy
- E-commerce taxation & regulation
- E-Government & Transparency
- First Amendment / free speech
- Inside the Beltway (Politics)
- Internet Governance
- Media Regulation
- Miscellaneous
- Open Source, Open Standards, and Peer Production
- Patents
- Podcast
- Privacy and Government Surveillance
- Sin on the 'Net
- Tech Pork
- Technology, Business, and Cool Toys
- Telecom and Cable Regulation
- Things that go 'Bump' in the 'Net
- Uncategorized
- What We're Reading
- Wireless and Spectrum Policy
-
Sponsors
