Archives for February 2006
EFF’s Big Tent
I just sent the following email to the Electronic Frontier Foundation:
From: Tim Lee
To: membership@eff.org
Subject: AOL CampaignAs an EFF contributor, and I wanted to express my disappointment at EFF’s decision to expend resources publicizing its criticism AOL’s GoodMail plan. While the technical merits of the plan are debatable, I don’t really see why EFF–an organization ordinarily dedicated to fighting to protect our rights online–should be involved in this fight. AOL’s customers voluntarily chose to subscribe to the company’s email service. If, as you predict, AOL’s policies are detrimental to their customers’ user experience, the customers are free to sign up with any one of dozens of other email services, many of which are available for free.
As I write this, there are many attacks underway on Internet users’ freedom. EFF’s viability as the “ACLU of cyberspace” depends on its remaining focused on that core mission. If it branches out into other issues, you risk alienating people who agree with you on core civil liberties issues but disagree on unrelated issues such as AOL’s email policies.
In the interest of maintaining the EFF “big tent,” I hope that you will refocus your efforts on fighting threats to users’ rights, and leave it to others to criticize the business decisions of companies like AOL.
Sincerely,
Tim Lee
I was briefly a financial supporter of the ACLU, until I got their first newletter, in which the executive director talked about their fight to protect affirmative action against California’s Racial Privacy Initiative. Now, reasonable people can disagree about the initiative, but I had trouble understanding why a civil liberties organization would be defending the government’s ability to discriminate on the basis of race.
They haven’t gotten any money from me since. I would gladly be an ACLU supporter if they would focus exclusively on genuine civil rights issues like free speech and privacy, but if they’re going to branch out into supporting generic left-wing causes, I’d rather give my money to a civil liberties organization whose positions I support 100% of the time.
I hope that the EFF doesn’t succumb to the same temptation. I recognize that most of their supporters are probably left of center, but I think they’re a lot stronger if they have some of us right-wingers on their team too. They jeopardize that broad base of support every time they wander off the reservation, as they have in this instance.
Sen. Rockefeller’s Cable Censorship Bill Could Be Considered in Senate
According to news reports, Democratic Sen. Jay Rockefeller (D-W.Va) is planning on trying to force the Senate Commerce Committee to include a controversial cable censorship proposal in a broad-based telecom reform bill the Committee might consider shortly. Along with Republcan Sen. Kay Bailey Hutchison (R-TX), Rockefeller introduced S. 616, the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005.” (I penned a lenghty analysis of this bill in the a PFF paper last year entitled: “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S. 616, The Rockefeller-Hutchison Bill.”)
In a nutshell, the Rockefeller-Hutchison bill proposes to roll the old broadcast industry content control regime onto subcription-based media outlets, namely, cable and satellite television distributors. James Reid, Sen. Rockefeller’s top telecom policy aide, told a crowd at a National Association of Broadcasters conference yesterday that “Sen. Rockefeller plans to offer his bill, in totality, or section-by-section, as amendments to the telecom bill as this goes forward.” If implemented, the bill would:
Loading More into the Shopping Cart
Jim DeLong has responded to comments on his shopping cart analogy - the idea that copying intellectual property is like taking a shopping cart - by pointing out that the marginal cost of producing a shopping cart is very low, just like the marginal cost of producing intellectual goods. His conclusion: the distinction between physical goods and intellectual goods is “one of degree, and often a slight one.”
Jim has not identified who has missed his point, and IPCentral doesn’t publish comments, so I’m going to assume that he’s responding to the posts and comments here on TLF.
The distinction I made between intellectual and physical goods in my long and windy post comes at a more basic level. I explored why property rights originate in the first place. In tangible goods, property rights exist to prevent conflict in the context of scarcity. In intellectual goods, property rights exist to prevent conflict in the context of abundance.
And we should be entirely clear that intellectual goods are abundant. Your computer has copied this post so that you could read it. Doing so has rendered no one less able to do so. Loading it from servers I theoretically pay for cost me a wee bit, but if you were to cut and paste this text, you could reproduce it at zero cost to its original producer/owner. Try doing that with a shopping cart! There is a difference between “tending toward zero” and “zero” - a difference of kind, not degree.
It could be that Jim D. is wedding intellectual and tangible property through a new theory: property rights arise as a natural consequence of things being produced from other things at marginal cost. This mixes the roots of property rights in natural justice with the economics of production, and I think it’s unworkable, but if that’s a theory he wants to defend . . . .
More likely, Jim is appealing to the unfairness of expensive pieces of intellectual property being stolen. I agree that violating copyrights is wrong, but I’m not sure that the marginal theory of value applies well in the intellectual property environment. Indeed, the copyright/patent clause in the constitution seems to call mostly for application of the labor theory of value. We should reward creators in amounts that promote the progress of science and useful arts.
Finding the level of reward that does this is difficult, but abandoning the task and adopting the marginal theory of value would probably reduce welfare compared to a regime that judiciously rewards creativity. It is my opinion that allowing the “Rambo” franchise to transfer more than a billion dollars from consumers to producers was wrong when consumers could have gotten the same value, and possibly much more, at half the price.
Dr. John Rutledge on Chinese Censorship
Dr. John Rutledge offers a perspective on Chinese censorship, greatly informed by his frequent travels there. An excerpt:
I use the word “attempt” because, as any parent can tell you, controlling the communication of young people is impossible. That’s just as true in China as in the US. The kids there have cell phones too. And like our kids they don’t talk with each other any more; they just send IM’s (Instant Messages).
They are also good at circumventing restrictions by inventing new words to replace the keywords the censors dislike.
Young people I have spoken with in China (they actually “talk” with old people like me who don’t know how to IM) tell me they have easy access to 95% of the information on the Internet, although they sometimes resort to Internet Cafe’s to do so.
Thus I persist in optimism.
An orphan works affirmative defense
I have co-authored a paper on orphan copyrights that is now out from the Michigan Telecommunications and Technology Law Review. You can get it here (PDF). In the article we define the orphan works problem and show how it interferes with the use of creative works. We also describe the causes and costs of the problem, critique four of the leading proposed solutions, and propose a new and practical solution of our own (basically a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense. If, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability.) The Copyright Office issued its orphan works report earlier this month, and the solution they recommended is similar to ours. Still, Congress has to act before the problem is solved and we hope our paper will be useful in the debate. We would certainly appreciate any comments you might have.
A Common-law Approach to DRM
Following a citation from Doug Lichtman’s latest paper on the legal implications of DRM, I found this longer paper on the legal status of self-help mechanisms. It covers a lot of the same ground, but it does so much more thoroughly, and includes some interesting examples outside the realm of high tech. I was particularly amused by the dispute between the Chicago cubs and the owners of neighboring buildings, who were erecting de facto skyboxes on their roofs and selling tickets to watch the Cubs play. This set off an arms race, in which the Cubs erected structures to obscure their view, while the property owners made plans to raise the height of the skyboxes to compensate. Sadly, the parties reached a profit-sharing agreement before courts could rule on the legal merits of the dispute.
The part I liked best about the paper was his discussion of the Grokster decision that begins on page 47. For example:
More Common Sense
It appears that Judge Spenser flinched from issuing a BlackBerry injunction. He continued to rattle his saber, but he stopped short of ordering the network shut down. And for good reason–you don’t piss off the majority of the nation’s lawyers and business execs without consequences.
Meanwhile, the patent office issued another rejection of an NTP patent. Things look pretty bleak for the nation’s leading patent troll.
Uncommon Common Sense
I never want to disappoint Jim (and in my timezone it’s only 9:46 AM, so he wins his bet), but I don’t have a whole lot to say about this other than “duh”.
Update: Well, OK, I do have one other thing to say about Goldberg’s comments: Steve Jobs agrees with him:
A lot of [music execs] didn’t use computers–weren’t on e-mail; didn’t really know what Napster was for a few years. They were pretty doggone slow to react. Matter of fact, they still haven’t really reacted, in many ways. And so they’re fairly vulnerable to people telling them technical solutions will work, when they won’t. When we first went to talk to these record companies–you know, it was a while ago. It took us 18 months. And at first we said: None of this technology that you’re talking about’s gonna work. We have Ph.D.’s here, that know the stuff cold, and we don’t believe it’s possible to protect digital content.
Of course, he doesn’t talk about this point much now that DRM is helping Apple to cement their dominance of the digital music business. But Jobs knows perfectly well that DRM doesn’t benefit the recording industry.
It’s a safe bet that Larry Page knows it too, but made the same calculation Jobs did: Hollywood won’t do business with Google unless Google agrees to wrap their content in DRM.
Tim Lee Betting Pool
As I write this, it’s 9:33 a.m. Eastern. I bet Tim Lee will have a post up about this (and/or this) by 9:54 a.m.
Thoughts on the Future of Content Controls (Both Public & Private)
On Tuesday I participated in a very interesting roundtable discussion on the future of content regulation in a multi-media world. The event was held at Yahoo! headquarters in Sunnyvale, CA and it featured representatives from a wide variety of companies and private organizations including: Google, Microsoft, AT&T, Verizon, AOL, Yahoo!, TRUSTe, the Kaiser Family Foundation, and Children Now. Our discussion focused on how to craft workable, private parental controls for Digital Age media content.
The roundtable was hosted by Stephen Balkham, CEO of the Internet Content Rating Association (ICRA). ICRA is an organization which works to create a safer online environment for kids by devising workable screening solutions for parents. In particular, ICRA has been a pioneer in the field of Internet content labeling and filtering. The organization has developed a system of objective content descriptors that website operators and other online media providers can use to label their content. Some of the companies and organizations listed above, as well as many other Internet, media and telecom companies, have already signed agreements with ICRA to use their content labels. Most recently, AT&T and Verizon agreed to use ICRA system to label their content offerings.
The Challenges of Controlling Content in a World of Media Abundance
I kicked off the roundtable with a “50,000-ft.” overview of the challenges that lie ahead. My remarks were drawn from the introduction to my new book on content controls in a world of media convergence. At the conference, as in my book, I put forward the thesis that content regulation, as we have traditionally understood it, is doomed. This is because a confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of media programming. The demise of content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.
Judge Martz Needs Internet Smartz
Having read the Perfect 10 v. Google decision, I agree with Fred von Lohmann’s analysis of it: this is a basically solid decision that goes off the rails because Judge Martz didn’t seem clear on the relationship between Google Image Search and AdSense.
Here’s how those two products work: Google Image Search is a search engine for images. It does not serve ads. AdSense is a third-party ad program whereby any website on the Internet can allow Google to place ads on their site in exchange for a cut of the revenues. The relationship between these programs is… well, there isn’t really a relationship, except they’re both Google products. Sometimes users find infringing pages using Google Image Search that have AdSense ads on them. The court decided this was evidence that Google Image Search was profiting off of infringement.
But that’s ridiculous. Google Image Search doesn’t give any particular preference to web sites that serve up AdSense ads. And AdSense serves up ads regardless of what search engine brought the user to the site. If Google cancelled Google Image Search altogether, there’s little reason to think AdSense would suffer financially–users would likely find the same pages using other search engines.
If this standard is to be taken seriously, search engine companies are going to have to divest themselves of all other online services that might involve infringing copyrights. Yahoo! will have to sell off GeoCities. Microsoft will have to stop selling IIS, its web server.
Google Image Search and AdSense are unrelated products. It makes no sense to consider them as a single product for the purposes of fair use analysis. That should be obvious to anyone with substantial experience using the web. It seems like a reasonable assumption that Judge Matz isn’t the most Internet-savvy guy around.
Update: Oops! It looks like I imagined an “r” in Judge Matz’s name. Sorry!
Video Security Blanket
Via the Commons Music blog, I see this in-depth article about the fact that hardly any graphics cards you buy today will be compatible with the forthcoming HDCP copy-protection standard:
HDCP stands for High-bandwidth Digital Content Protection and is an Intel-initiated program that was developed with Silicon Image. This content protection system is mandatory for high-definition playback of HD-DVD or Blu-Ray discs. If you want to watch movies at 1980×1080, your system will need to support HDCP. If you don’t have HDCP support, you’ll only get a quarter of the resolution.
As part of the Windows-Vista Ready Monitor article, I was going to publish a list of all of the graphics cards that currently support HDCP. I mean, I remember GPUs dating as far back as the Radeon 8500 that had boasted of HDCP support.
Turns out, we were all deceived.
Although ATI has had “HDCP support” in their GPUs since the Radeon 8500, and NVIDIA has had “HDCP support” in their GPUs since the GeForce FX5700, it turns out that things are more complicated–just because the GPU itself supports HDCP doesn’t mean that the graphics card can output a DVI/HDCP compliant stream. There needs to be additional support at the board level, which includes licensing the HDCP decoding keys from the Digital Content Protection, LLC (a spin-off corporation within the walls of Intel).
The more I read about these kinds of enterprises, the more I’m struck by how brittle they are. Each and every component in the HDCP content stream–the optical drive, the operating system, the graphics card, and the monitor, and numerous small components, must be specifically reviewed and approved by the HDCP consortium to make sure that they follow the rules. The millions of drives, computers, graphics cards, and monitors that were designed prior to the release of the HDCP spec (i.e. virtually all the video hardware in use today–even hardware that’s physically capable of playing high-resolution video) will have to be thrown out if consumers want to view Blue-Ray or HD-DVD content. This is a tremendous cost in time, money, and consumer inconvenience.
Yet if a vulnerability is found in even one of those components (something that history and theory say is inevitable), the entire exercise becomes pointless. Somebody will exploit the vulnerability to decode the file and upload it to a P2P networks. At that point, all the DRM in the world won’t stop someone from downloading an unprotected copy.
The HDCP effort is akin to adding a third deadbolt to your front door when the back door doesn’t even have a lock. It might make some of us feel better, but it’s not going to do much to stop the bad guys.
No More Morbid Fun With Telemarketers
Well, it appears my fun with telemarketers is over. The Direct Marketing Association (DMA) has created a “Deceased Do Not Contact” list to give family members the ability to remove the names of deceased loved ones from mass-marketing efforts.
I was a little sad to hear this for reasons that you might find somewhat disturbing. You see, back in the days before the “Do Not Call” list went into effect and my wife decided to put our number on it, I use to have fun toying with telemarketers by pretending I was dead. Just so you know, I’m not one of these people–and I know there are a lot of you out there–who get evangelical about the supposed evils of telemarketing. Frankly, I never saw what the big deal was. If you didn’t want to hear someone’s sales pitch, just hang up the phone! For God’s sake, they’re just trying to sell you something and you always have the right to say “NO!” and slam the phone down.
Nonetheless, I sometimes got as annoyed as the next guy when the calls came in, especially during the dinner hour. So, to get the really pesky ones out of my life, I use to have a little fun with them. When they called for the umpteenth time and I’ve finally had it, the conversation would go something like this:
Mistrust-based DRM
Last week, Randy Picker wrote about an idea for “mistrust based” digital rights management technology:
Watermarks are a form of identity-based DRM. The embedded watermark would allow a content owner to scan p2p networks in search of available content. Having found the content and the associated identity, the content owner would be able to respond to the illegal distribution. But respond how and won’t the anti-DRM software just strip the watermark anyhow? This is where mistrust comes in. In embedding identity into content, we may also need to embed access to something valuable, a hostage or mini-bond as it were. Consider a couple of versions of this. If access to content brought with it full-access to a customer’s account, customers would be quite careful about sharing access to the content.
Today, Ed Felten reacts to the proposal:
In the more traditional system, the watermark is secret–it can be read only by the copyright owner or its agents–and users fear being sued for infringement if their files end up on P2P. In Randy’s system, the watermark is public–anybody can read it–and users fear being victimized by fraud if their files end up on P2P. I’ll call these two alternatives “secret-watermark” and “public-watermark”.
How do they compare? For starters, a secret watermark is much harder for an adversary to find and remove. If a watermark is public, everybody knows exactly where in the music it is stored. Common sense, and experience too, says that if you know where in a file information is stored, you can modify that part of the file and obliterate the information. But if the watermark is secret, then an adversary isn’t told where to look for it or how to change the file to remove it. Robustness of the watermark is an important issue that has been the downfall of past watermark systems.
A bigger problem with the public-watermark design, I think, are the forces unleashed when your design principle is to enable fraud. For example, the system will lose its force if unrelated anti-fraud measures become more effective, or if the financial system acts to protect users from fraud. Today, a consumer’s liability for fraudulent credit card transactions is capped at $50, and credit card companies often forgive even that $50. (You could use some other account information instead of the credit card number, but similar issues would still apply.) Copyright owners would be the only online merchants who wanted a higher level of fraud on the Net.
I think Felten has the better argument here. Like most DRM proposals, Picker’s idea is great in theory but is likely to fall short when it comes to implementation. It’s much easier to imagine a watermark scheme with the characteristics Picker describes than to build one. Both Picker’s and Felten’s posts are worth reading in full.
Tollbooths on the Internet Highway?
Yesterday the New York Times had an editorial about network neutrality. They employed a great analogy: “When someone calls your home, the telephone company puts through the call without regard to who is calling. In the same way, Internet service providers let Web sites operated by eBay, CNN or any other company send information to you on an equal footing.” They conclude, however, that Congress should enact net neutrality legislation to ensure that “equal footing.”
Here’s what I want to know: Given competition, how many consumers would stand for a phone company that didn’t put through everyone that called them unless the caller paid extra? The key here is competition. The NYT seems to understand this because it says that “Most Americans have little or no choice of broadband I.S.P.’s, so they would have few options if those providers shifted away from neutrality.” That’s debatable. But even if it weren’t, wouldn’t seeking more competition be the ultimate solution?
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