October 2005

Framing Copyright Debates

by on October 31, 2005

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.

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.

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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.

[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?

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Our Coming Wireless World

by on October 26, 2005

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.

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

by on October 24, 2005 · 2 comments

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

by on October 24, 2005

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]

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

by on October 21, 2005

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:

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