Archives for October 2005
Framing Copyright Debates
I’ve got a new article up at Reason about a disingenuous argument that’s often heard in copyright debates: that those who defend the traditional scope of copyright (including principles such as fair use and limited terms) are really just opponents of intellectual property who want to (as Jame DeLong put it a couple of months ago) “abolish intellectual property rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government.”
Now obviously there are a few IP anarchists out there who want to do precisely that. But that’s not the position of mainstream copyright industry critics. Rather, they are defenders of America’s copyright traditions, which delimits the rights of copyright holders to ensure that copyright does not smother innovation or impoverish our culture.
These are complicated issues. Products like Google Print and Grokster raise difficult questions about how the law can best ensure that artists and authors are compensated without stifling what are undeniably important technological advances.
But it seems that a lot of people on the other side don’t like dealing with these nuances. So instead, they’d like to frame the debate as being a disagreement over “property.” There’s a “pro-property” side that thinks piracy is bad, and an “anti-property” side that doesn’t think piracy is a big deal, just as in Kelo, there was a pro-property side that wanted to rein in eminent domain abuse and an anti-property side that doesn’t think eminent domain abuse is a big deal.
Efforts like the Grover Norquist’s Property Rights Alliance, which I discuss briefly in my article, are all about convincing people on the libertarian and conservative right that that’s what’s at stake. By putting the RIAA, MPAA, et al side-by-side with anti-Kelo activists, they subtly reinforce the idea that they’re fighting the same battle–that, like the eminent domain debate, it’s an argument between a pro-property right and an anti-property left. As I explain in my article, that’s not what’s at stake, and it’s vital that that framing not be allowed to dominate the copyright debate.
Mergers, Conditions, and the Missing Commissioner
The FCC today unanimously approved SBC’s acquisition of AT&T as well as Verizon’s purchase of MCI, ending a federal approval process that began early this year. For these mergers to take effect, now all that is needed is approval by a few remaining state regulators.
Symbolically, the mergers revolutionize the telecom industry–ending for all intents and purposes the 20-year split between long-distance and local portions of the industry, and he political warfare that went along with it. Yet, there was always less to the mergers than met the eye. Their effect on the marketplace will actually be quite limited. It been a few years since consumers looked to AT&T and MCI for telecom choice, moving instead to wireless and net-based alternatives. And with E-Bay and Google now playing on the telecom field, the significance of these mergers wi. (See “Ma Bells’ Retirement: No Big Deal“) And, with SBC’s announcement that it will change its own name to AT&T, even the cosmetic change is diminished.
Still, there’s a fair amount of gain to be had by integrating these firms into SBC and Verizon respectively. Yet, these gains will be limited, thanks to regulatory conditions placed on the deals. Each firm pledged to abide by restrictions demanded by the Commission, ranging from leasing lines toEven this will be limited, though, by 13 specified conditions, ranging from a freeze on UNE rates to maintaining “settlement free” peering policies for Internet backbone traffic (though the Commission found the mergers did not threaten competition in this market). The conditions even included special commitments regarding the state of Alaska.
Hill Lunch Event on Telecom Reform
CEI will be hosting a lunch event on the Hill this Friday at noon. The focus will be on how we should be thinking about telecom reform in evolutionary terms, of phasing-out current law while not adding new laws to cover new technologies. I’ll be speaking and so will fellow TLF member James Gattuso, Randy May of PFF and Blair Levin of Legg Mason. The discussion of telecommunications regulation can quickly get bogged down by details. And while details are important, we must keep true to a broad deregulatory vision that I outlined (along with my colleague Wayne Crews) in Communications without Commissions: A National Plan for Reforming Telecom Regulation. The essence of my proposal is a series of phased deregulatory initiatives: 1) Setting jurisdictional boundaries; 2) Removing current economic and social policy regulation; and 3) Reforming the FCC and Spectrum Management. This deregulatory vision has been absent from the two main bills that have been proposed, though Senator Ensign’s bill is more deregulatory than the House Commerce Committee Discussion Draft bill.
The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation
[Cross-posted from the PFF blog]
As Ray noted in his essay last week on Clearwire and VoIP blocking, I have long argued that broadband service providers (BSPs) will eventually will end up price differentiating based on bandwidth usage, in part because of the futility of differentiating based on service bundling or technological applications / usage.
What I mean by this is that most attempts to discriminate against specific websites or applications are likely doomed to fail or end miserably for the carriers. First, with Net surfers getting more sophisticated with each passing day, it will be very difficult to block most activities without them finding ways around the restrictions. Second, attempting to discriminate against certain types of bits is complicated for the carriers and will likely require more effort than it’s worth. Third, even if carriers were able to discriminate against certain bits, if they went overboard it would spark an intense consumer backlash and a likely exodus to an alternative broadband provider. (And if a serious alternative backbone provider was not yet available in that region, excessive blocking / meddling by the incumbent BSP would likely serve as the best incentive for new entrants to enter the market and offer a less-restricted surfing experience.)
But critics claim that I’m full of it and some of them pointed to last week’s front-page story in the Wall Street Journal as evidence. In their article, “Phone, Cable Firms Rein in Consumers’ Internet Use,” reporters Peter Grant and Jesse Drucker claim that, “Several large telephone and cable companies are starting to make it harder for consumers to use the Internet for phone calls or swapping video files.” The story goes on to note that some BSPs “have begun to closely monitor the uses of their network with an eye toward controlling activity by users who are swapping movies, TV programs, pornography and other video files. Operators say file sharing is growing so quickly, it threatens to sharply slow down other uses.”
What are we to make of this? Are BSPs hell-bent on controlling our web-surfing experiences and even resorting to “discrimination” against certain types of uses or activities? Should that be illegal? Are there other ways of handling this problem?
Our Coming Wireless World
The market research firm In-Stat reports that 9.4 percent of the nation’s 193 million wireless subscribers have already made their mobile phone their primary phone and the firm expects that percentage to grow to 23 to 37 percent by 2009.
Hopefully our wireline-obsessed policymakers in Washington will read this report and realize that their seemingly endless efforts to regulate wireline networks will only seek to further disadvantage those networks relative to the new wireless and Internet-based competitiors. Of course, it is more likely that lawmakers and regulators will simply respond to this news by finding new ways to regulate new wireless technologies and competitors.
Data Security Debate on News.com
This week, I’m debating some folks on data security regulation at CNET News. com. Could be interesting and informative.
So far, the debate has transmogrified, at the hand of News.com’s editors, from data security regulation into “IDENTITY CRISIS” and my first post was provocatively (mis-)named “Why should people trust the industry?” - a question that I think is off-point and needlessly loaded. An inauspicious start but, still, check it out.
Highlight: California State Senator Joe Simitian calls regulating a “duty.”
Satire as Misrepresentation
Apparently, in PFF land a “satire” is when you blatantly misrepresent your subject and then heap scorn on the straw man you’ve created.
The article strongly implies that “Sal” would watch the movies and listen to the music she copies, and that the indexing service would just be a gimmick to excuse the copying. But of course, that’s the whole point: no human being will ever see the book copies Google is making. Moreover, the average book is about 100,000 words long, of which Google will show about 50 words. So to be analogous, Sal’s service would have to play less than one second (not 30 seconds) of a 3-minute song or 5 seconds of a 2-hour movie.
In short, once we modify Sal’s plan to accurately reflect how Google Print would work, it becomes clear that her service would be (1) completely useless and (2) no threat whatsoever to copyright holders. This is satire?
It’s Not Just an Ideology
Ever wonder why the ‘bloggers on Tech Liberation Front feel the way they do? This might give you some idea.
Things are getting better all the time and technology is integral to making that true. So, while we often rant here about the dumb people doing dumb things to hinder progress, let’s take a moment to savor how technology is making life better in every respect.
There. That was nice.
[HT: Instapundit]
OT: My Annual Anti-Soccer Rant
OK, this has nothing to do with technology policy, but knowing the love some of my fellow TLF bloggers have for the game of soccer, every once and awhile I like to go off on a little rant about this dreadful sport that is currently infecting America.
To explain why I hate soccer so much, let’s take a look at last night’s opening PLAYOFF game between the D.C. United and the Chicago Fire.
Both teams charged up and down the field numerous times, playing footsie with each other the whole way, until they got close to the goal and then - - assuming some stupid offsides penalty was not called for someone actually beating their man downfield - - they kicked the ball and the crowd would go wild because it was only 5 feet away from the net instead of the usual 10-15 feet off the mark.
Back and forth they went all night until this monotony produced the stellar result of - - are you ready for this - - a 0-0 TIE GAME.
Woo-hoo! Pop the champagne and let’s celebrate this big ZERO-ZERO playoff tie!!
I just cannot think of anything more exciting than that. After all, wining is for losers. In our “let’s not hurt Johnny’s feelings” political correct world, soccer is the perfect sport. When the commies who invented this stupid sport were sitting down to devise the rules, apparently they had a special “from each according to their need” moment and decided that TIE games during PLAYOFFS would be the ultimate equalizer of the masses.
I’m sorry, but I refuse to call anything a “sport” if it can end in a tie especially during “a playoff.” Doesn’t “playoff” mean you play till one team is off the board? I guess not in the pinko little sport of soccer.
[Jim Harper, Tim Lee and other soccer dorks... I invite any defense you guys want to provide for this pathetic "sport." But I won't be reading it until after I get done watching Game 1 of the World Series. You've heard of baseball, I assume? That's a sport where playoff games end with one team defeating the other.]
I Want My GPL
James DeLong muses about Google’s motivation for cutting a deal with Sun, speculating that Google may be contemplating a switch to Solaris to avoid the obligations of the forthcoming GPL 3.0.
This is (to be euphemistic) a silly theory:
Sen. Coleman’s Effort to Stop a “U.N. for the Internet”
Three Cheers for Sen. Norm Coleman! He recently introduced a Sense of the Senate resolution “to protect the U.S.’s historic role in overseeing the operations of the Internet from an effort to transfer control over the unprecedented communications and informational medium to the U.N.”
In his statement, Sen. Coleman argued that:
“There is no rational justification for politicizing Internet governance within a U.N. framework. Nor is there a rational basis for the anti-U.S. resentment driving the proposal. Privatization, not politicization, is the Internet governance regime that must be fostered and protected. At the World Summit next month, the Internet is likely to face a grave threat. If we fail to respond appropriately, we risk the freedom and enterprise fostered by this informational marvel, and end up sacrificing access to information, privacy, and protection of intellectual property we have all depended on. This is not a risk I am prepared to take, which is why I initiated action to respond on a Senate level to this danger.”
YOU GO NORM! I love it.
Faithful readers of this blog will know that this issue really gets me worked up. Here’s my recent Wall Street Journal editorial on the issue that I penned with my old friend Wayne Crews of CEI. And two years ago, Wayne and I also co-edited a massive collection of essays on Internet governance / jurisdication issues entitled “Who Rules the Net.” Our point in the book and that recent editorial was simple: We stand at a crucial moment in the history of the Internet and unless we stand firm in opposition to those who seek to impose an international regulatory regime on this vibrant, borderless technology of freedom, the Internet as we know it today will die.
Let’s hope that other members of Congress and the Administration will join Sen. Coleman in this important effort to protect the Internet from the global regulatory / bureaucratic nightmare that looms overhead today.
Search Engine Legality
The complaint in the case of McGraw-Hill v. Google is available on FindLaw. The most interesting paragraph, in my opinion, is this one:
Google purports to justify its systematic copying of entire books on the ground that it is a necessary step to making them available for searching through www.google.com, where excerpts from the books retrieved through the search will be presented to the user. Google analogizes the Google Library Project’s scanning of entire books to its reproduction of the content of websites for search purposes. This comparison fails. On the Internet, website owners have allowed their sites to be searchable via a Google (or other) search engine by not adopting one or more technological measures. That is not true of printed books found in library shelves. Moreover, books in libraries can be researched in a variety of ways without unauthorized copying. There is, therefore, no “need,” as Google would have it, to scan copyrighted books.
This is very confused. Let’s start with the business about “technological measures.” I assume that they’re talking about robots.txt, a file that webmasters use to tell search engines which content they are allowed to index. It’s worth noting that robots.txt is an opt-out convention. If a site doesn’t have a robots.txt file, search engines will index it.
So it seems like Google’s approach is entirely consistent with the web-search precedent. Just as robots.txt provides web site publishers with a mechanism for notifying search engines which pages not to index, Google is providing book publishers with a mechanism for indicating which books are not to be indexed. Publishers who fail to provide Google with a list, like webmasters who fail to put up a robots.txt file, can be said to have “allowed” their content to be indexed.
This paragraph also shows an ignorance of search engine history. Websites, like books, can be “researched in various ways without unauthorized copying.” Indeed, that’s where the search engine industry started. The first major Internet search engine, Yahoo!, was a keyword-based search engine analogous to a card catalog. Sites were added to the directory manually by a human being who would read the web site and write a summary for the directory.
Then in 1995, along came AltaVista, which offered the first full-text search of the web. The results were so obviously superior that Yahoo! licensed the technology in 1996. Soon every search engine had full-text functionality. So web sites, too, can be “researched in a variety of ways unauthorized copying.”
So the reason that all search engines today make copies of websites isn’t that it’s impossible to index them without doing so. Rather, it’s that full-text searches are vastly superior to the alternatives, and full-text searching is impossible without making a full-text copy.
If there had been an Association of Web Site Publishers in 1995, they could have made precisely the same argument about AltaVista. Had they prevailed, it’s hard to predict how things would have evolved, but it seems unlikely they would have gone as well. Search engines would have spent a great deal of time contacting and negotiating with web-site owners for permission to include them in their indexes. Some web sites might have signed exclusive deals with a particular search engine, or demanded that search engines pay a fee to include them in their searches. The most comprehensive search engines might have required users to subscribe, as LexisNexis and Factiva do.
Or maybe enlightened webmasters would have realized that search engines were a win-win proposition and permitted them to index their sites. Maybe they would have developed a standard way to indicate permission to index, and things would have evolved about the same way. But regardless, the analogy the publishers are trying to draw is bogus. Full-text searches–of books or web sites–require the creation of copies. If Google Print is copyright infringement, then so is Google itself. I hope it’s obvious to everyone that declaring Google illegal would be a bad idea.
Felten on Mossberg on DRM
Walt Mossberg has a great column criticizing digital rights management technology. He gets the fundamental point that DRM harms consumers by needlessly restricting how, when, and where they can consume content they have legally purchased:
I believe that consumers should have broad leeway to use legally purchased music and video for personal, noncommercial purposes in any way they want–as long as they don’t engage in mass distribution. They should be able to copy it to as many personal digital devices as they own, convert it to any format those devices require, and play it in whatever locations, at whatever times, they choose.
And he suggests boycotting DRM’ed products, such as copy-protected CDs, that overly restrict consumer choice.
However, he makes a fundamental error:
Instead of using DRM to stop some individual from copying a song to give to her brother, the industry should be focusing on ways to use DRM to stop the serious pirates–people who upload massive quantities of music and videos to so-called file-sharing sites, or factories in China that churn out millions of pirate CDs and DVDs.
Princeton CS professor Ed Felten’s reaction is right on the money:
This is a nice vision, but it’s not really possible. It’s abundantly clear by now that no DRM system can stop serious pirates. A DRM system that stops serious pirates, and simultaneously gives broad leeway to ordinary users, is even harder to imagine. It’s not going to happen.
No one has ever invented an un-crackable DRM system. When a new DRM system is released, it invariably takes just a few weeks for someone to release a cracking tool.
That’s not a coincidence. Bits are inherently copyable. Building an un-copyable bit isn’t just a difficult engineering challenge. On a general-purpose computer, it’s impossible. If a computer can read a piece of data, it can make a copy of it. The best you can do is to obfuscate the content so that figuring out how to make the copy is difficult and time-consuming. But that kind of obfuscation won’t stop a professional pirate or a hobbyist cracker with a lot of time on his hands.
Incidentally, it’s worth noting that probably the world’s most famous DRM cracker, Jon Lech Johansen has moved from his native Norway to San Diego to work for Michael Robertson, the the founder of the ill-fated MP3.com and (later) Lindows/Linspire. Johansen produced software to crack the copy-protection on DVDs at the age of 16, and more recently he’s cracked the copy-protection on Apple’s iTunes Music Store. It’s not clear what he’ll be doing, but it’s a safe bet that Hollywood and the recording industry won’t like it.
CAGW on Real ID
Citizens Against Government Waste has issued a report on the Real ID Act.
This is a welcome look at Real ID. It’s known by civil libertarians as a dramatic step forward for our national ID system, but CAGW points out that it will also be a huge expense, costing the average driver around $90.
Would you pay $90 to be even more subject to government surveillance?
Kudos to CAGW for recognizing the privacy issues while it exposes the huge costs involved in the Real ID Act.
Ken Ferree added to Heritage “Must-Change TV” line-up
Last minute addition to the schedule for tomorrow’s event at Heritage on digital television: Ken Ferree, former FCC media bureau chief, and–until last week–COO of the Corporation for Public Broadcasting. Ferree led the Commission’s DTV efforts during the Powell era, and is known for his outspoken views (of broadcasters: “They’d rather eat their children than give up their spectrum.”)
Ferree joins Tom Hazlett of George Mason University, Peter PItsch of Intel, former Ass’t Attorney General Chuck Cooper and New American Foundation senior fellow Jim Snider in what promises to be quite an interesting discussion. Stop by if you can, or watch it on the Internet. Details here.
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