May 2006

EFF reports that a California appeals court has thrown out Apple’s demands for Apple Insider and PowerPage to disclose their sources. As I wrote last year about a different but closely related case, I think it’s a little bit strange that mainstream media reports are describing these as “blogger” cases:

Yet upon closer examination, it’s hard to see what the fuss is about. If anything, the incident reveals more about mainstream journalists’ condescending attitude toward their upstart online competitors than it does about law or technology.

Think Secret is not a “blog.” It is a commercial, advertisement-supported online magazine. It’s run by a college student, and is therefore smaller and less polished than online magazines like Slate or Salon. But the First Amendment’s protections aren’t limited to slick publications with large staffs. Some of the Founding Fathers, after all, were prolific pamphleteers, hardly more polished than Think Secret.

The same is true of Apple Insider and PowerPage. They’ve been in business since before the term “blog” entered our lexicon, and their format is closer to online magazines than it is to blogs.

Not that it matters from a legal point of view. In its decision, the court makes it clear that the law makes no distinctions among journalists based on size or professionalism:

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

The freedom of the press isn’t a special privilege that applies only to government-recognized journalists. Everyone who’s engaged in the collection and dissemination of newsworthy information is protected. There’s nothing new about any of this, but it’s good to see the courts affirm that the rules don’t change just because journalism is happening on the Internet instead of the printing press.

Kevin Drum takes Matt Yglesias to task for suggesting that network neutrality might be new regulations rather than the simple continuation of existing regulations:

The 1996 Telecommunications Act defined two different types of service, information services (IS) and telecommunications services (TS), and cable companies were originally classified as IS and telephone companies as TS. Although both cable companies and telcos provide local internet access, the backbone of the internet is carried exclusively by telcos, which were regulated as common carriers under the tighter TS rules. The common carrier rules effectively enforced the principles of net neutrality on the internet backbone.

Is this right? I’ve always had the impression that peering agreements on the backbone itself have been basically anarchic–you could basically peer with whoever you wanted on whatever terms you wanted. That’s certainly the impression that the Wikipedia article on the subject gives. Can anyone fill me in on the subject?

Update: James Gattuso points to this excellent article by the Progress and Freedom Foundation on the Internet backbone. Some comments on this below the fold.

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We mostly focus on computer technology here at TLF, but there are other types of technologies that are arguably more important. For all my railing against the DMCA, I have to concede that, as far as I know, it’s never gotten anybody killed. The same can’t be said, unfortunately, of our organ-donation system. AEI’s Sally Satel writes:

When Rob Haneisen, a reporter at the MetroWest Daily News in Framingham, Mass., who has written about people in situations like hers, asked Lisa if he could interview her for a story, she jumped. Perhaps former colleagues, long lost friends, or a Good Samaritan would read about her and volunteer to donate. Lisa had even begun coordinating with Beth Israel Deaconess Medical Center to prepare for a transplant, should a donor come forward as a result of the News article that ran on April 16.

Enter Dr. Douglas Hanto, head of the transplant division at Beth Israel. He had heard about Lisa’s circumstance when Haneisen called him for an interview as part of the story. Before speaking to the reporter, Hanto had his staff phone Lisa right away to deliver shocking news: Beth Israel would flatly refuse to do her transplant if the only donor she could find was a kind-hearted stranger who responded to the article.

“We are in favor of donors coming forward and donating to the next person on the waiting list,” Hanto told Haneisen. And how many have done that so far over the years, the reporter asked? “Just a couple,” Hanto admitted. Also puzzling is Hanto’s assertion: “We have hundreds of people on the waiting list. If we support some favored status for one patient, how can we really say we are being fair and looking out for all our patients?”

The fact is that Lisa harms nobody if a stranger responds to her story and comes to her aid. In fact, she helps people on the list because she is taken out of the cadaver-waiting queue and others can move up.

Transplants in this country are handled by the United Network for Organ Sharing, a non-profit organization with a government-granted monopoly on the distribution of organs. The “bioethicists” at UNOS are obsessed with ensuring that organs are distributed “fairly,” even if fairness leads to fewer donations and more people dying. The system is arbitrary, it’s stupid, and–most importantly–it’s deadly

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Last month, Corey Doctorow pointed out that by the RIAA’s reckoning, President Bush is a music thief. As part of the DMCA rule-making proceedings, the RIAA said that ripping a CD to your portable music player without authorization is against the law. And since the Beatles haven’t allowed their music on Apple’s iTunes Music Store, the only other ways to get Beatles music onto your iPod is by ripping a CD (illegal) or using a peer-to-peer downloading service (also illegal).

Now Radley points out that Hillary Clinton’s a lawbreaker too.

Yglesias vs. Google

by on May 25, 2006 · 6 comments

My old roomie Julian Sanchez and my friend Matt Yglesias go at it over neutrality regulation on Bloggignheads.tv. If you haven’t seen it yet, Bloggingheads.tv is (as its name implies) a site featuring popular bloggers debating the issues of the day on camera. My favorite thing about the Sanchez/Yglesias spot was the fact that Julian was smoking. People haven’t smoked on TV in decades–and especially not talking head pundits! It felt deeply subversive to watch politics being debated in between drags of a cigarette.

Anyway, my sympathies are with Julian’s side of the argument, but I thought Matt’s argument, which he dubbed a vulgar Marxist perspective, is interesting: basically, he doesn’t feel qualified to evaluate the technical merits of the issue, but he figures that given that Google’s interests lie in getting more content to consumers cheaper, their interests are more likely to align with those of consumers. And therefore, for those who aren’t competent to analyze the issue on their merits, it’s best to err on the side of supporting Google and other Internet companies.

In evaluating this argument, I think it’s worth distinguishing the short-term and long-term impacts of regulation. Julian covered the short-term argument pretty well: it might be that without the ability price discriminate, telcos will have less incentive to invest in new infrastructure. That’s clearly bad for consumers, but it might be good for Google if it ensures Google free access to whatever new infrastructrue investment the telcos do make. I don’t think it’s crazy to think that Google’s interests might diverge from those of consumers on this front.

But I think the long-term implications are more interesting, and ultimately a lot more important. Because what network neutrality does, for the first time, is to give the FCC (or some federal agency) authority over the administration of the networks that comprise the Internet. The debate so far has focused on cable and telephone companies, but there’s no reason to think the extension of authority contemplated by the pro-reguatory side would be limited to those networks. University networks, WiFi hotspots, hotel connections, and any new broadband technologies that arise in the future would also be covered.

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Avoiding CRAP

by on May 25, 2006 · 6 comments

David Berlind defends himself against critics who argue he’s selling us out by endorsing efforts like DReaM:

Here on ZDNet, and in email, I’ve been taking some heat for my idealism, or in this case, my lack thereof, when it comes to DRM: er: CRAP. Follow this thread for an example. Some readers would rather see me stick to the hard line of buying and advocating nothing that includes DRM. In essence, donning a hazmat suit like the CRAP-fighters above (personally, what better metaphor can you ask for.. hazmat suits, crap:get the picture?). So, just to be clear, I haven’t personally purchased any DRM-related material since first figuring out the downside for myself (not being able to play 99 cent songs on a $20K whole home audio system). That said, I’ve had people come up to me and ask which MP3 player they should buy for themselves or someone else as a gift and, invariably, they’re not open to the idea of not buying one at all, buying one that takes a lot of work (circumventing DRM, digitizing music yourself), or breaking the law. I know. They must be from another planet. Freaks.

OK, back on Earth, these people exist. And so, the question is, do you stick to your ideals, walk away, and let them suffer from their own lack of enlightenment. Or, do you at least try to guide them to something that’s a fender bender compared to a fatal accident? I will vote with my dollars. But, at the same time, if there are people out there that refuse to heed the ultimate advice, I can’t let my idealism stand in the way of steering people away from the trainwrecks. That’s why I’ll try to guide people like that to solutions like Navio or Project DReaM, only after giving up on convincing them to not buy any of this CRAP. CRAP is a dirty business and in the end, it’s we, the users, who get dumped on. But there are some things we can do to control the extent to which that happens.

People shouldn’t reject DRMed products because of some kind ideological hippy crusade. They should reject DRMed products because it’s in their own interests to do so. Right now we’re in the throes of format wars: iTunes vs. Windows Media, BluRay vs. HD-DVD, CinemaNow vs. Google Video, etc. If you buy DRMed content in one of those formats, you’re committing yourself to buying devices compatible with that format for as long as you own that content.

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At today’s Judiciary Committee mark-up session, Chairman James Sensenbrenner contributed a new and quite imaginative argument as to why neutrality regulation is ok: its not regulation at all. It–at least the Judiciary Committee’s version–is simply good old fashioned antitrust. Specifically he said:

Opponents of this legislation have sought to portray efforts to provide a meaningful remedy for anti-competitive misconduct by broadband providers as regulatory in nature. However, the antitrust laws have served as a competitive backstop against competitive abuse by market-dominant forces for over a century.

In other words, just move along, nothing new here that hasn’t been around for a century.

But wait a second. The provisions of the Sensenbrenner bill are very much the same, even using some of the same language as, many of the other “regulatory” bills out there. There are some differences of course–one key one is that Sensenbrenner has no role for the FCC, the provisions are to be enforced by the courts. But substantively the regulations imposed look very much the same.

Oops. Did I say “regulations”? I meant to say “antitrust laws”. Its not regulation, you see, because all the provisions are to be tacked on to the existing Clayton Act. That makes it part of that hundred-some year old antitrust law.

This is a nice feat of bootstrapping. In fact, maybe Congress could try it elsewhere. Having trouble funding the newest bridge to nowhere? Put it in as an amendment to the Clayton Act, and– “poof”– its antitrust law, not wasteful spending. Or maybe the immigration reform controversy could be settled that way–put it all at the end of the Clayton Act and its instantly part of the long antitrust tradition. The possibilities are endless.

The ironic thing is that it actually might make sense to apply existing antitrust law to broadband providers instead of creating a whole new regulatory scheme. In fact, the chairman of the FTC says that it already does apply.

But that’s not what the Judiciary Committee proposed. It proposed regulation. It should call it that.

Nick Carr pronounces the death of Wikipedia. Well, that’s what he suggests in his attention-grabbing headline. What he’s really talking about is the alleged end of Wikipedia as an open encyclopedia:

There was a time when, indeed, pretty much anyone could edit pretty much anything on Wikipedia. But, as eWeek’s Steven Vaughan-Nichols recently observed, “Wikipedia hasn’t been a real ‘wiki’ where anyone can write and edit for quite a while now.” A few months ago, in the wake of controversies about the quality and reliability of the free encyclopedia’s content, the Wikipedian powers-that-be – its “administrators” – abandoned the work’s founding ideal of being the “ULTIMATE ‘open’ format” and tightened the restrictions on editing. In addition to banning some contributors from the site, the administrators adopted an “official policy” of what they called, in good Orwellian fashion, “semi-protection” to prevent “vandals” (also known as people) from messing with their open encyclopedia.

I think this misunderstands what “open” means. Open source projects sometimes get similar criticism for the fact that they’re often organized as tightly-knit groups of core developers led by a “benevolent dictator” who has ultimate control of the code base. Critics claim that this proves that the projects aren’t “really” open and democratic.

But this misunderstands the point of “openness” in this context: it isn’t about the organizational philosophy of a project, it’s about what constraints are placed on the use of the finished product. Or specifically, about the lack of such constraints. What distinguished Wikipedia from Britanica, or MySQL from Oracle, isn’t that one was created “democratically.” Rather, it’s that anyone is free to use, copy, and modify Wikipedia or MySQL for their own use, while the use of Britanica and Oracle are controlled by for-profit companies.

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The new Betamax case?

by on May 25, 2006

Seven Hollywood studios and TV networks are suing Cablevision over its new network DVR service. To a consumer, the service is just like TiVo in that they choose programs to record and watch at a later time. The difference is that there is no set-top DVR on the consumer’s premises; it’s all recorded at Cablevision’s end and sent to the customer when they request it. The studios and networks claim that this is not like TiVo but instead like video-on-demand, which would require Cablevision to license the shows it broadcasts to its customers. Cablevision counters that time-shifting is a well-established consumer fair use right.

William Patry wonders if this is the next Betamax case. I think two things are key to establishing that this is consumer time-shifting. First, does Cablevision record only one copy of a show that is requested by customers and does it then multicast that copy? (Isn’t this how MP3.com did it?) The news accounts I’ve read have been sketchy on the technology, but the WSJ reports that “Rather than recording all content automatically on a centralized device, the Bethpage, N.Y., company would create individualized storage within the network for each subscriber that paid for the service.” Second, is a show available only to a customer that had the foresight to record it, or can you simply say, “You know, I’d like to watch the last two episodes of 24 even though I never recorded them, but the cable company did, so I’ll just call them up.” If not, and if each customer has hard drive space on the server that they fill up with their own copies, there’s a good case that this is just like TiVo and thus a fair use by consumers that are merely using Cablevision as their tool for recording.

But who knows, the Ninth Circuit decided this week that when Congress wrote the word “less” in a statute they really meant “more.”

Every reporter loves a “man bites dog” story, something that’s out of the ordinary, a reversal of the norm. Especially so when the subject is something as abstuse to the average reader as, to give a random example, Internet regulation. Add in the opportunity to use the term “strange bedfellow” and you’ve got an irresisitible angle.

Thus, it’s far from surprising that so much ink and bandwidth has been spilled on the “strange bedfellow” coalition supporting neutrality regulation. Most recently, National Journal spun the tale, with a story today on the “unusual alliance” that has brought together rock band such as Nine Inch Nails with the Gun Owners of America and the Christian Coalition. “[T]he battle to ensure net neutrality has created an atmosphere where the lion can lie with the lamb,” NJ reports.

The problem is that, with a few exceptions, political animals are not mixing in this debate. Each species is pretty much sticking with its own.

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