February 2006

Software Libre

by on February 17, 2006

I often scratch my head when James DeLong writes about open source software:

Torwalds emphasis on reciprocity as a dominant value is right. It is a word used often here at PFF to describe the workings of the IP system, and to explain why unauthorized P2P violates the social contract.

But he has an awfully limited view of reciprocity in that he insists that code can only be traded for code. This may do in a research context, but once one enters the world of affairs, not even the most primitive barter economy trades like for like. Og the Cro Magnon traded meat for a finely crafted club, or a log canoe for a tent.

Now, granted, Torwalds is not talking about trading exactly the same code, but this is still a strange and unnecessary conttraint.

This is, shall we say, a strange and unnecessary argument. We on the libertarian side of the fence often extol markets, commerce, and for-profit institutions, because they work very well and provide us all with a lot of goods and services we value. But I think we too often fall into the trap of assuming that market institutions are always superior to non-market institutions, or (even worse) that for-profit institutions are always superior to not-for-profit ones.

But that’s silly. The essence of the libertarian position is that decentralized, voluntary institutions are better than centralized, coercive ones. As it happens, markets are one of the most important examples of a decentralized, non-coercive institution. But it’s far from the only one. Churches, private charities, universities, think tanks, and families are all examples of private organizations that do good things without primarily relying on the profit motive. I can’t remember ever reading a libertarian attack churches because they rely so much on volunteers rather than paid workers to get things done. Volunteering at your church is an example of reciprocity that doesn’t involve an exchange of money. We libertarians usually praise such arrangements as worthwhile alternatives to government coercion.

An open source software projects is another example of a private, decentralized, voluntary institution. It’s the sort of thing that free-market types should be promoting, as another example of how valuable products can be created without regulations and subsidies. Yet DeLong regularly does just the opposite.

Now obviously, the fact that DeLong’s criticism isn’t intrinsically libertarian doesn’t mean it’s wrong. Here’s what he’s missing: Torvalds demands reciprocity in the form of code rather than money because the source code is actually useful to him. Ed Felten named his blog “Freedom to Tinker” for a reason. Software that comes with its source code is more useful than software that doesn’t. Being able to “tinker” with the software we use is an ability many of us programmers value, and it’s taken away from us by proprietary software.

DeLong seems to think that open source programmers are just ideologically driven zealots who don’t like paying for things. But that misunderstands their motivation. Primarily, their concern is technical, not ideological or financial. The ability to examine and change a program’s source code is valuable, independently of whether you paid for the software in the first place, and independently of whether you’re planning to share it with others. So Torvald’s motivation in trading code for code is that he actually wants the code. Not because he hates the profit motive, but simply because the code is useful to him, and he can’t get it with proprietary software.

This is a point that non-programmers have trouble understanding. When they hear the phrase “free software,” they hear “software I don’t have to pay for.” That’s not what the phrase means–it’s an unfortunate limitation of the English language. The open source movement uses the phrase “free as in free speech, not free beer” to try to explain the distinction. It’s about what you can do with the software, not how much you paid for it. This confusion doesn’t exist as much in Spanish, where there are different words for these two concepts: “gratis” for “free as in beer,” and “libre” for “free as in speech.” The purpose of the GPL is to preserve the latter for the benefit of programmers. The former is just an incidental benefit to users.

Telecom policy is famous for its acronyms. Everything from POTS (Plain Old Telephone Service) to PANS (Potential Advanced Network Services) has its own TLA or FLA (Three Letter Acronym or Four Letter Acronym). And technology being what it is, they change all the time–with new generations of acronyms constantly being coined. Thus its not surprising that most people I know just glaze over when hearing about them all. Most of the terms so familar to tech geeks and us policy wonks may as well be Aramaic to the average person.

For that reason, I found a new Harris Interactive poll released this week rather surprising: over half (56%) of Americans are familar with IPTV. Not bad for a relatively new acronym, and a service that’s only available in a few markets. Moreover, those polled are interested in getting IPTV–one in four said they’d like to have it on their TVs. One in five were interested in getting it on their PCs.

That’s good new for companies like Verizon and SBC, who are challenging cable firms with new IPTV (or IPTV-like) services. However, there’s bad news too for them: one-third of respondents said they’d be most comfortable getting IPTV from their cable company. Only 13 said their telephone company. Still, the overall numbers indicate that Americans are receptive to change here, providing more reason to believe a TV revolution may be coming soon.

Also interesting is the reasons that people are interested in IPTV. Not surprisingly, lower cost was the most important factor–with 42 percent citing that. However, the next two reasons related to individual choice and control over programming, with on-demand viewing mentioned by 33 percent, and a broader array of programming content cited by 24 percent.

This seems to support the argument that IPTV could be a major factor in the on-going debate over TV content. Pro-family groups are pressing for more consumer choice in cable (eg a la carte pricing) as a way to filter out offensive programming. IPTV very well may provide that choice, and this poll shows people are getting the message that IPTV is about choices as well as prices. This could be a classic case of TBOS (Two Birds, One Stone).

Much of the debate so far over cable tv franchising has been in generalities. For instance, the set of principles outlined by Sens. Burns and Inouye refers elegantly to “deliberately structured dualism”, recognizing that each local cable regulatory is “uniquely positioned to ensure that video providers meet each community’s needs and interests in a fair and equitable manner.”

That’s all very nice. But what is it that local officials are really asking for? In a recent filing with the FCC, AT&T provided some specific examples of what some creative local officials are requesting as part of their efforts to ensure that video providers meet their community’s needs and interests in a fair and equitable manner:

— One city asked the potential cable competitor to pay for a new recreation center and pool.
— Another city compiled a $13 million dollar wish list, including digital editing equipment, and video cameras to film a math tutoring program.
— A New York town asked for seed money (literally) for wildflowers, and a video hookup for its Christmas celebrations.
— A Massachusetts cable authority asked for free television for every house of worship and a 10% video discount for all senior citizens.
— Another asked for high-speed Internet for sewage facilities and junk yards.
— A no doubt aesthetically minded regulator asked for “flower baskets for light poles.”

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The Web is Not the Internet

by on February 16, 2006 · 6 comments

Today’s USA Today editorial on network neutrality exemplifies many of the things that are wrong with that debate:

Much of the Internet’s appeal is that no one controls it in the way that, say, a grocery store decides which brands to stock. Within its virtual walls, a start-up such as MySpace or Craigslist can surge to prominence entirely on the power of an idea.

Now, some very old-school companies want to change all that. Using market dominance achieved through the relative scarcity of lines into people’s homes, phone companies such as BellSouth, Verizon and AT&T are eyeing a system that would demand that operators of search engines, e-commerce sites and other Web applications pay them fees or be relegated to the slow lane.

In the first place, these companies have no ability to change “all that.” Each of them controls a fairly small share of the US residential broadband market. The Internet is bigger than residential customers, and it’s bigger than the United States. There’s no threat that AT&T, Comcast, or anyone else will change the way the Internet as a whole operates.

Secondly, the web is not the Internet. And in fact, the web is largely irrelevant to the debate. The bandwidth that’s available today is already more than enough to browse the web comfortably. Network neutrality regulations, if they are necessary at all, are required for next-generation services like video and voice, not web sites.

Aftersimmering on the back burner for months, the debate over video franchise reform came to a rapid boil over the past two weeks, with developments seeming to bubble up on every front. Last Friday, the FCC held a meeting in Keller, Texas–not so coincidentally the site of Verizon’s FIOS TV launch last fall. At the meeting, the Commission officially adopted its annual report on video competition. On the following Monday, comments were filed in the FCC’s proceeding on whether local franchise authorities are unreasonably limiting competition by in delaying application by (former) telephone companies. Then came Tuesday’s hearing in the Senate Commerce Committee, where–you guesed it–video competiton was the issues of the day. Add to that the nearly ubiquitious advertising campaign launched by Verizon and AT&T for cable choice, and the issue was nearly impossible to avoid.

Will anything come of all this? Perhaps yes. Senator Ted Stevens–the Commerce Committee chair, made news by expressing sympathy for telephone company entry into the cable TV markets, and saying he’d soon introduce a bill to reform franchise rules. That’s good news. But what would it say? Earlier this month, Sens. Burns and Inouye teamed up to release a set of “principles” for franchise reform, which called for elimination of “unnecesary” delays in franchising, but also warned of writing a “blank check” to new entrants, and endorsing a “deliberately structured dualism” with a strong local role in regulation. Get past all the buzz words, and that’s a pretty weak brew of reform.

The Burns-Inouye principles were met (also this week) with counter-statement from a surprisingly diverse group of six senators, including Republicans John Ensign and John McCain and Democrat John Kerry. This statement, stressing the consumer benefits of broadband called for congressional action “this year” to reform franchising. This “gang of six” letter gave a nod to some continued local role, but the overall implication was clear–local regulators are slowing down competition, hurting consumers, and Congress should step in to stop that.

After this week, video franchise reform seems to have real momentum. In the Senate, the next move is up to Sen. Stevens, who’s bill is expected soon. The question is: will he take this opportunity to push for real change, or stick with politics as usual? Stay tuned.

Sun Rises Thanks to DRM

by on February 15, 2006 · 2 comments

A who’s who of the copyright industry have submitted comments in the Librarian of Congress’s triennial review of the DMCA’s anti-circumvention provisions. In it, they argue that the Librarian shouldn’t grant any exemptions to the anti-circumvention provisions because they have done such a splendid job of stimulating the production of creative works:

The “availability for use of copyrighted works” is perhaps the most important statutory factor to be considered when assessing the impactof § 1201. The Joint Reply Commenters believe that the undeniable success of the current digital marketplace, which has given consumers of copyrighted material more choices than ever before, should weigh heavily against the recognition of any exemption in this proceeding. When the Register and the Librarian “carefully balance the availability of works for use, the effect of the prohibition on particular uses and the effect of circumvention on copyrighted works,” it will become clear that the DMCA has come a long way toward achieving its goals without burdening noninfringing uses in any significant way.

It’s certainly true that there are a lot of copyrighted materials for sale today, and that’s great. But I don’t understand what the copyright industry thinks would have happened in the absence of the DMCA. Would Disney, Paramount, Universal, et al have cut back on the number of movies and albums they produced? Would they have liquidated their assets and returned the capital to their shareholders? Would they have refused to release any content in digital formats?

Of course not, and that’s not just speculation. We know exactly what the content industry would have done if DRM technology hadn’t been available: they would have continued to sell as much content as they could, just as they do now. How do I know that? Because to this day, the recording industry sells millions of copies of new music in the DRM-free CD format.

If the music industry really believed its line that content owners will only offer their content with DRM protections, then they would have stopped selling CDs the moment DRMed formats like iTunes became widely available. But of course they didn’t, because they don’t even believe their own spin. They know perfectly well that the vast majority of their customers are honest and wouldn’t steal their music even if they had the physical capability to do so. But if they admitted that they’d continue producing content with or without DRM, it would make it much harder to pretend that they support the DMCA for the benefit of consumers.

We policy wonks think of ourselves as taking the long view of things, but have we been thinking ahead enough?
In the category of far future threats to liberty–from the New York Times:

In his new book, “How to Survive a Robot Uprising,” Dr. Wilson offers detailed … advice on evading hostile swarms of robot insects (don’t try to fight–“loss of an individual robot is inconsequential to the swarm”); outsmarting your “smart” house (be suspicious if the house suggests you test the microwave by putting your head in it); escaping unmanned ground vehicles (drive in circles–they’ll have a harder time tracking you); and surviving hand-to-hand combat with a humanoid (smear yourself with mud to disguise your distinctive human thermal signature and go for the “eyes”–its cameras).

I so want a Rhoomba and a Scooba, if only to watch them interact with the cats, but my husband says we have to buy this book first.

The Electronic Frontier Foundation is challenging Clear Channel’s patent on a system that records an event and produces copies of the recording for distribution at its conclusion. This is, quite simply, an obvious concept. Recording a show is certainly not a new concept, and the idea of doing so quickly, while certainly a valuable enhancement, doesn’t strike me as an “invention” worthy of legal protection. This illustrates an important reason that software patents are almost always obvious: this patent is just a grab bag of distinct features thrown together with some software glue. Recording, real-time editing, and burning, individually, are not difficult or original concepts. Moreover, there are general principles of good software design that make combining these three features into one system straightforward for anyone “skilled in the art” of computer programming.

Getting a Grip

by on February 14, 2006 · 10 comments

James DeLong kindly commented on my recent post mocking his shopping cart analogy.

DeLong has a strange all-or-nothing conception of copyright law. He seems to see only two choices: either consumers must slavishly obey the restraints of DRM, or they have the right to do absolutely anything they like with copyrighted materials. Hence, if I criticize DRM for preventing me from watching DVDs on my iPod, that means that I think Netflix should be illegal.

That’s silly. So is his claim that “it is probable, though not legally certain, that shifing the playing venue [i.e. transferring a DVD to an iPod] would not be classified as fair use.” The courts in Diamond v. RIAA held that “space shifting” of music from a CD to an MP3 player was legal, citing the Betamax decision as precedent. It sure seems like the same reasoning would apply to movies. But perhaps there’s a legal nuance I’m missing.

Finally, I continue to be baffled by this sort of argument:

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Some recent posts on the always interesting IPCentral ‘blog prompt me to invite some more careful discussion about the similarities and differences between intellectual property and tangible property. I think such discussion might help illuminate the apparent disagreement among libertarians posting their comments here on TLF and on IP Central.

I’m more of a tech-head libertarian activist than a theoretician or even a constitutional scholar any more, so I’m probably going to expose myself to a lot of criticism thrashing around in philosophy and theory as I’m about to do, but who cares! If it helps get people to talk more carefully about their differences on IP, it’ll all be worth it.

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