Brendan S

I also hope you’ll read my forthcoming Cato Policy Analysis, where I lay out the problems caused by the DMCA in greater detail.

I’m aware that the mainstream critiques of IP are along different lines. But frankly I either agree with a lot of those critiques or think they relate only to fairly marginal issues, so I’m not particularly interested in refuting them. The main place where I differ with most critics is in thinking that they do not take the underlying problem seriously enough. Example, there are certainly a lot of problems with the DMCA–but, well, ALTERNATIVES, anyone? Having the only boundaries in the digital content world being legal ones (as opposed to technological) does not strike me as being optimal.

In response to the comments, some of which are hilarious:

I can assure that our KSR brief was not some cynical ploy to deflate any and all criticism of the patent system; we’re concerned about patent quality. Really.

Mike: If your trackbacks didn’t show up, it was, well, who knows, but certainly not a policy response. Trust me, we have NO IDEA who you are.

Re my technical expertise or lack thereof: Free market policy generally can accomodate a wide spectrum of technological developments; indeed, in large part, that’s the freakin’ point. Nothing in my thinking about DRM depends on the same DRM being both interoperable and competitive in the sense you mention. Competition between different DRM systems and systems with no DRM is perfectly fine with me.

And I’m really sorry you are not enjoying the century’s creative arts. But I don’t think that has much to do with copyright policy, actually.

The problem I have with IPCentral is that they don’t know what the hell they’re talking about on most technical issues. Solveig Singleton actually responded to a post of mine a while back where I called her bluff on how to make DRM simultaneously interoperable and competitive. You can’t do it. Either you build it into your operating system’s I/O system or you make it a pluggable module that works like a kernel module/plugin (for microkernel systems). That’s of course assuming it’s not built into the application.

I’m a software developer, not a lawyer, but I do know some things about property rights in principle. Their love of DRM is not compatible with basic notions of private property rights and I personally shudder at the thought of a world in which copyright is king. It’s a world in which the customer is a sharecropper with no aspirations of becoming a yeoman farmer when it comes to his/her purchased goods.

Btw, anyone ever notice that since copyright law become so prominent, there have been no Mozarts, Beethovens, etc.? Where is the real Shakespeare of the 20th century? Do we have to wait another full century to get a shot of this total copyright-protected music world creating and supporting such genius?

Patent monopolies are causing challenges to many innovators, startups, and of course, large established corporations. The “IP debate” isn’t complete until we talk about all the abuses that go on here, as well as stakeholders’ push to extend their idea monopolies in the same way that they wish to extend their content monopolies in the copyright world.

For example, it would do us little good to legalize circumvention of content restriction devices (or repeal the DMCA in its entirety) if the content industry earns patents on the processes and methods of circumventing them. Effectively, the same control would be exerted over production of such circumvention software or products: it would be illegal to create, distribute, or offer for sale tools that circumvent without the explicit permission of the content industry.

Patent monopolies are causing challenges to many innovators, startups, and of course, large established corporations. The “IP debate” isn’t complete until we talk about all the abuses that go on here, as well as stakeholders’ push to extend their idea monopolies in the same way that they wish to extend their content monopolies in the copyright world.

For example, it would do us little good to legalize circumvention of content restriction devices (or repeal the DMCA in its entirety) if the content industry earns patents on the processes and methods of circumventing them. Effectively, the same control would be exerted over production of such circumvention software or products: it would be illegal to create, distribute, or offer for sale tools that circumvent without the explicit permission of the content industry.

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His response? He ignored it.

I guess that’s how he “engages” in debate.

I consider myself a libertarian-leaning conservative and I think that IP in general is a good idea. But I believe that the current maximalist trend is going way too far and takes away consumer rights. So I guess I’m with the majority of the young libertarian professionals in the mailing list Tim polled. It’s too bad that there aren’t more center-right voices for balanced IP and that the IP debate in the center-right is dominated by maximalists like DeLong. Currently the balanced IP camp, at least as it seems to me, is dominated by the center-left. Consider many of the well-known law professors (e.g., Lessig et al.) and the interest groups (e.g., EFF, Public Knowledge, etc.) in the balanced IP camp . As far as I know, none of them would qualify as conservative. This leads to, I think: 1) an inability to further build a broad balanced IP coalition, because there is an inability to make arguments for balanced IP that will appeal to conseratives, and 2) inability to make much traction in a Republican Congress with regard to pro-consumer legislation.

Another problem is the property rhetoric that has been so effective in swinging the IP debate in the maximalist direction. People like DeLong seem to fall too easily for the property analogy and fail to see that 1) intellectual creations is just plainly different from tangible property or even certain intangible property and therefore does not deserve moral (and maybe the legal) imprimatur the “property” moniker provides, and 2) even if intellectual creations is property and property rights are generally good in the abstract, more property rights is not necessarily better. Maybe, the young libertarians that DeLong laments are anti-IP/pro-balanced-IP precisely because they can see through the charade of the IP as property rhetoric.

I consider myself a libertarian-leaning conservative and I think that IP in general is a good idea. But I believe that the current maximalist trend is going way too far and takes away consumer rights. So I guess I’m with the majority of the young libertarian professionals in the mailing list Tim polled. It’s too bad that there aren’t more center-right voices for balanced IP and that the IP debate in the center-right is dominated by maximalists like DeLong. Currently the balanced IP camp, at least as it seems to me, is dominated by the center-left. Consider many of the well-known law professors (e.g., Lessig et al.) and the interest groups (e.g., EFF, Public Knowledge, etc.) in the balanced IP camp . As far as I know, none of them would qualify as conservative. This leads to, I think: 1) an inability to further build a broad balanced IP coalition, because there is an inability to make arguments for balanced IP that will appeal to conseratives, and 2) inability to make much traction in a Republican Congress with regard to pro-consumer legislation.

Another problem is the property rhetoric that has been so effective in swinging the IP debate in the maximalist direction. People like DeLong seem to fall too easily for the property analogy and fail to see that 1) intellectual creations is just plainly different from tangible property or even certain intangible property and therefore does not deserve moral (and maybe the legal) imprimatur the “property” moniker provides, and 2) even if intellectual creations is property and property rights are generally good in the abstract, more property rights is not necessarily better. Maybe, the young libertarians that DeLong laments are anti-IP/pro-balanced-IP precisely because they can see through the charade of the IP as property rhetoric.

Another issue is that current law (such as the DMCA) totally disregards technological realities. I’m 45, but maybe I’m more technically oriented than most people my age or older. Maybe younger people (and some of us who are older) understand that laws are not ever going to stop the technical ability to copy digital files. If the data is there, someone can break into it, assuming that the “lock” is such that consumer-level devices can get into it in the first place.

The more people realize what the new IP laws are going to prevent them from doing (such as time shifting their TV viewing as they’ve done with VCRs when they try it with something like a broacast flag), they’re not going to put up with it. Laws such as this destroy any respect for laws, because they’re not worth respecting and they’re unenforcable.

IP law in the digital age MUST change, even if older people (or less technically savvy people) don’t “get it” quite yet.

Nevertheless, the ageist implication of his little rant (and apparent emailings), is easily turned on its head. There is a new economy. There are new technologies. He is too obstinate to deal with them (I refrain from fully flipping his bigotry).

Want to solve piracy? Let me download Lost or the Daily Show for 25 cents as it airs, and play it on my ipod, computer, and burn to disc to watch on my DVD player (I’d go as high as $1, but I don’t think the advertising lost is worth much more per viewer–which would be an interesting study in itself).

Honestly though, kudos, Tim, for making a slight effort to engage someone who doesn’t appear to be willing to listen in the least.