Everything That’s Not Required is Forbidden?

by on March 23, 2006 · 12 comments

There are a lot of political debates in which one side believes that a particular activity ought to be compulsory, while the other side believes it ought to be prohibited. For example, conservatives liberals want to teach evolution in schools, while liberals conservatives want to prohibit the teaching of evolution in schools. The debate over filling birth control prescriptions is similar: conservatives think pharmacies should be prohibited from requiring their pharmacists to fill them, while liberals think pharmacists should be required to fill them.

Ordinarily, libertarians stake out a third position: that the activity in question should be neither prohibited nor compulsory. In the case of schools, they argue for giving parents more choices, so they can find a school whose curriculum matches their beliefs. In the case of prescriptions, they believe the pharmacy should be free to set whatever policy it likes, and the pharmacists are free to find a new job if they don’t like it.

That’s hard for non-libertarians to swallow, because they’re always more interested in the particular issue (should our kids learn evolution? Should women have access to birth control?) than the broader issue of whether the state should get involved at all.

So here’s another example of this kind of unlibertarian thinking. In his recent criticism of my paper, Mr. Ross seems to think there are only two options: either interoperability can be mandatory, or it can prohibited:

Many of the author’s arguments seem opposed to innovation, particularly where he advocates interoperability. He chooses as a positive example of interoperability the 3.5-mm headphone jack. This is a true innovation, although there are still some devices using the older, larger jack (and some audiophiles that say this gives a better listening experience). But the 3.5-mm port is not as ubiquitous as he would suggest. Many cell phones that put size at a premium use smaller jacks, requiring you to go to the wireless store and buy a compatible ear piece. Is this wrong? The market seems to be working here. For the most part CE devices have adopted the 3.5-mm, which is good for consumers, but when it is more in the consumer’s interest to have a razor-thin phone, then a smaller jack is used. Advocates of true interoperability would resent the innovation being used by the cell phone manufacturer, arguing it’s just trying to carve out market power for itself. This, of course, is the charge Apple is facing in France right now with its iPod and iTunes.

The right answer to this hypothetical, obviously, is that there ought to be no compulsion on either side of the equation: it should be legal to build any kind of jack you want, but it also should be legal to build a device that will plug into someone else’s jack, even if you haven’t gotten permission first. Competive markets, not litigation, should determine which standards emerge as the most popular.

By the same token, the law should neither mandate DRM interoperability nor prohibit circumvention. Companies should be free to adopt whatever DRM schemes they like, and to take whatever private mechanisms they wish to prevent other companies from interoperating. However, the law should remain neutral, neither forcing companies to open up their own platforms, nor preventing companies from opening up competitors’ platforms through lawful reverse engineering.

That’s what Phoenix did to IBM’s PC platform, creating probably the most innovative and competitive industry in the world. It’s what Accolade did to Sega’s Genesis platform, and what Connectix did to Sony’s PlayStation platform. The state didn’t require these companies to open up their platforms, but it also didn’t interfere when the companies figured out how to do it on their own.

But this possibility seems to be lost on Ross. He seems to feel that it’s impossible for the state to remain neutral, that the state must either throw its weight behind keeping closed platforms closed, or it will throw its weight in the other direction, forcing all platforms to be open. But he’s wrong. The best solution is the libertarian solution: the state should remain neutral and allow competition to work its magic.

  • http://www.commonsmusic.com/blog Commons Music

    “…conservatives want to teach evolution in schools, while liberals want to prohibit the teaching of evolution in schools.”

    Read that sentence, think about it, edit. ;-)

    Other than that, another fine rebuttal post.

  • http://www.commonsmusic.com/blog Commons Music

    “…conservatives want to teach evolution in schools, while liberals want to prohibit the teaching of evolution in schools.”

    Read that sentence, think about it, edit. ;-)

    Other than that, another fine rebuttal post.

  • http://www.techliberation.com/ Tim

    Fixed, thanks!

  • http://www.techliberation.com/ Tim

    Fixed, thanks!

  • http://www.blindmindseye.com MikeT

    It’s ironic that IPCentral, defenders of “self-help,” cannot understand that point. Either the government goes fascist by protecting big business or socialist by going jacobin on big business. In reality, the state can choose to remain a non-party until actual copyright infringement has happened and then send people to prison for it or provide civil arbitration. Unplanned interoperability can be very dangerous to DRM, that’s true, but it is not an inherent problem if done right.

  • http://www.blindmindseye.com MikeT

    It’s ironic that IPCentral, defenders of “self-help,” cannot understand that point. Either the government goes fascist by protecting big business or socialist by going jacobin on big business. In reality, the state can choose to remain a non-party until actual copyright infringement has happened and then send people to prison for it or provide civil arbitration. Unplanned interoperability can be very dangerous to DRM, that’s true, but it is not an inherent problem if done right.

  • fishbane

    The best solution is the libertarian solution: the state should remain neutral and allow competition to work its magic.

    And unfortunately, that’s also why it won’t happen. The vast majority of people, no matter what their political leanings, seem to simply not understand state inaction as an option. Trying to explain the positive impact of inaction to people reminds me of college debates about atheism: many people simply cannot understand that the stance isn’t a positive belief system.

  • fishbane

    The best solution is the libertarian solution: the state should remain neutral and allow competition to work its magic.

    And unfortunately, that’s also why it won’t happen. The vast majority of people, no matter what their political leanings, seem to simply not understand state inaction as an option. Trying to explain the positive impact of inaction to people reminds me of college debates about atheism: many people simply cannot understand that the stance isn’t a positive belief system.

  • dmarti

    How far should the EULAs of DRM-infected works be allowed to go? Should the law be “if it looks like a sale it’s a sale” (Softman v. Adobe) or should the law enforce “by breaking this seal you agree…” clauses against reverse engineering?

    One place a DRM “mandate” is definitely called for, though, is in the public sector. When bureaucrats mandate a DRM system, they’re imposing unaccountable, privatized regulations on people who have to communicate with the government. (But forbidding the _government_ to do something shouldn’t offend libertarians.)

  • http://zgp.org/~dmarti/ Don Marti

    How far should the EULAs of DRM-infected works be allowed to go? Should the law be “if it looks like a sale it’s a sale” (Softman v. Adobe) or should the law enforce “by breaking this seal you agree…” clauses against reverse engineering?

    One place a DRM “mandate” is definitely called for, though, is in the public sector. When bureaucrats mandate a DRM system, they’re imposing unaccountable, privatized regulations on people who have to communicate with the government. (But forbidding the _government_ to do something shouldn’t offend libertarians.)

  • http://www.techliberation.com/ Tim

    Don: The extent of EULA’s is a complex question on which I don’t have a good answer. But generally speaking, I think that EULAs should be enforcable, but that the mere fact that a piece of third-party software is designed to violate the EULA doesn’t mean that the software should be illegal.

    So software tools to convert iTunes music to another format (say, to Microsoft’s DRM format) shouldn’t be illegal, but if Apple wants to track down and sue users who use such software, they have every right to do so. Of course, they’d never do that in practice because it would be a PR nightmare.

    I should also mention that I’m not entirely sure how the Sony/Grokster line of cases ought to apply to circumvention tools. It might be that certain kinds of circumvention tools (such as a utility to decrypt your iTunes library and uploaded it to a peer-to-peer network) would fail the Sony and Grokster tests. But I think this is an area of law that ought to be allowed to evolve in the courts without Congressional interference, because I’m pretty sure that whatever rule Congress might come up with will be worse than what would emerge from a common law process.

  • http://www.techliberation.com/ Tim

    Don: The extent of EULA’s is a complex question on which I don’t have a good answer. But generally speaking, I think that EULAs should be enforcable, but that the mere fact that a piece of third-party software is designed to violate the EULA doesn’t mean that the software should be illegal.

    So software tools to convert iTunes music to another format (say, to Microsoft’s DRM format) shouldn’t be illegal, but if Apple wants to track down and sue users who use such software, they have every right to do so. Of course, they’d never do that in practice because it would be a PR nightmare.

    I should also mention that I’m not entirely sure how the Sony/Grokster line of cases ought to apply to circumvention tools. It might be that certain kinds of circumvention tools (such as a utility to decrypt your iTunes library and uploaded it to a peer-to-peer network) would fail the Sony and Grokster tests. But I think this is an area of law that ought to be allowed to evolve in the courts without Congressional interference, because I’m pretty sure that whatever rule Congress might come up with will be worse than what would emerge from a common law process.

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