July 2006

I’m back from my every-few-years journey to Nelson, Canada, my hometown. Back to 1970′s levels of technology, too–not that the town isn’t wired, it is, and wirelessed, too, though coverage in the mountains is spotty; I understand there are now people from Vancouver settling there and telecommuting. But my mother’s house has neither computer, nor any kind of Net access, nor a touchtone phone (yes, the phone has an actual dial), no hair dryer, no clothes dryer, no dishwasher, no microwave, and no CD or DVD player, just an old record player and a radio. She does have cable tv, but this is in the last 10 years… before that, no television at all. No car. She likes it this way.

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Write What You Know

by on July 31, 2006 · 8 comments

This is the most embarrassingly clueless critique of network neutrality regulations I’ve seen in months. Music lawyer Chris Castle explains that the real reason that copyleftists like Larry Lessig are pushing network neutrality regulations is to ensure that ISPs don’t discriminate against peer-to-peer file-sharing programs. In addition to being riddled with technical errors (A VPN is not faster than an ordinary Internet connection, and TCP/IP packets aren’t marked with “DNS addresses”), his argument doesn’t even make sense:

The fundamental reason that massive file bartering can continue is that it doesn’t cost users anything more to use their high speed Internet accounts to send an email to their granddaughter as it does their granddaughter to illegally download 5 gigabytes a day of copyrighted materials.

One can easily understand why the Lessig/Fisher cabal supports “net neutrality” given their continued support of massive copyright infringement through “nodding and winking” litigation. However, it is easy to see how Adam Smith’s Invisible Hand could be used to make free riders pay for their use of the Internet for illegal purposes.

Many BitTorrent and p2p connections are excruciatingly slow as it is. Imagine if end users of these products found themselves dumped to the end of the line unless they wanted to pay for higher speed connections.

As far as I know, no network neutrality proposals to date would prohibit bandwidth metering. And they certainly don’t prohibit charging extra for higher-speed connections. I suppose that neutrality regultions could prevent ISPs from singling out P2P packets specifically for discrimination, but it’s not clear why ISPs would want to do that. If P2P applications use more bandwidth than other applications, then charging high-traffic users more would discourage P2P use without running afoul of anti-discrimination rules. And if other applications are equally bandwidth hogs, presumably ISPs would be interested in controlling those too.

Castle also has a weird, sneering attitude toward encryption. Apparently the only reason a user would want to encrypt his traffic is to hide illegal file sharing. It’s not like users ever transmit confidential financial or medical information over the Internet.

I hope Mr. Castle’s understanding of the law is better than his understanding of the Internet.

Incidentally, Specter’s op-ed demonstrates a shocking level of deference to presidential authority that strikes me as wholly inconsistent with our constitutional tradition:

The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president’s contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval. The president, however, did personally commit to submitting this program for court review should the bill pass. Even without a legal mandate, his sending this program to the FISC would be a powerful precedent to be considered by future presidents.

President Bush’s record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush’s personal commitment to submit his program to FISC is therefore a major breakthrough.

Specter seems to consider it a great favor for the president to permit Congress and the courts to scrutinize his actions. “Weakening the presidency institutionally” is the whole point of the Fourth Amendment. We don’t want a president so “strong” that he gets to invade the privacy of Americans without first submitting to court scrutiny.

That last sentence gets the situation precisely backwards: the president is offering to submit his program to FISC only after Congress concedes that doing so is a matter of presidential discretion. The effect of that would be to ratify the administration’s expansive view of presidential power. Such a concession would weaken Congress and the courts the next time an illegal surveillance program is discovered. And it would further erode the principle that the executive branch needs to get permission from Congress and the courts before it conducts a search, not do as it pleases and then browbeat Congress into ratifying its actions after the fact.

The Washington Post has a good editorial on Sen. Specter’s proposal (which he defended here) that would effectively legalize the NSA spying program and others like it:

Under the Supreme Court’s decades-old understanding, presidential power is at its lowest ebb when the president is acting contrary to the will of Congress, and at its zenith when he is using his own powers in concert with legislative authorization. Right now, to conduct warrantless surveillance domestically Mr. Bush must act at the very least in sharp tension with FISA. Under Mr. Specter’s bill, however, the legislature would be explicitly acknowledging an alternative source of authority for snooping. It would thereby legitimize not only whatever the NSA may now be doing but lots of other surveillance it might dream up.

The bill would also allow–but not require–the administration to seek warrants for entire surveillance programs, based on the flimsiest evidence against a small subset of the population that would be subject to the surveillance. The result is that consistent with the bill, the administration could either ask or not ask judicial permission to monitor individuals or large groups of people, based on evidence or no evidence. Or it could simply act outside the law entirely.

An optional warrant requirement is a contradiction in terms. If a president is willing to flout the clear warrant requirements of FISA, what reason is there to think he’d pay any attention at all to a warrant requirement that’s so riddled with loopholes?

Hat tip: Derek

There are some interesting comments that you might have missed in response to James Gattuso’s post last week about VoIP quality and network neutrality. Mike Masnick takes him to task for reading more into the Brix report than is merited.

Brix CTO Kaynam Hedayat notes that his company doesn’t take a position on neutrality regualtions, but he added these clarifications:

- Based on comments from the testyourvoip user community more than half the tests were run for pre-qualification purposes (prior to signing up for VoIP). In those cases the users did not know if they had problems or not prior to running the tests.
- Close to one million tests were conducted for this study.
- The types of impairments and degradation factors that we analyzed point to network congestion. We are further analyzing the data to understand the location of congestion (core, last mile, etc.).
- Via the testyourvoip portal we measured and continue to measure “end-to-end” VoIP quality on the internet.
- The tests are conducted between the user’s desktop to one of seven locations across the globe as selected by the user. The seven locations are connected to the internet via high BW connections without any impairments (they are monitored).

Cog linked to this Ed Felten post questioning whether QoS was a good argument for neutrality regulation. Felten concludes that it’s not–that in many cases simply throwing more bandwidth at the problem is a better solution. For what it’s worth, I find Cog and Felten’s position pretty persuasive. Guaranteeing QoS is a difficult engineering problem that’s likely to require rolling out a lot of new and expensive networking hardware across the network, if it can be made to work at all. Simply building out more capacity is likely to be a more cost-effective option, and it has the salutary side effect of increasing peak bandwidth in addition.

On the other hand, Felten, Cog, and I could be wrong. It may be that QoS can be deployed in a cost-effective manner, and that non-QoS network management techniques simply won’t give us the quality of service we need for high-bandwidth, interactive applications. Which is why we should leave network owners with some freedom to experiment. No one has a monopoly of wisdom on network design, and if anyone did, it certainly wouldn’t be Congress or the FCC!

The European Commission has taken a break from trying to re-design Microsoft’s software just long enough to get excited about DVDs. According to this report, “European Commission antitrust officials are probing the licensing strategies of two rival new generation DVD developers, HD DVD and Blu-ray Disc.” Given that competition is fierce among rival DVD developers, one wonders how exactly Eurocrats think their help is needed in creating competition.

At least it’s not all bad news coming from Europe. A small ray of hope for America’s tech industry arrived this week when the French Constitutional Council declared major aspects of France’s iPod law unconstitutional. Apparently, not all property rights have disappeared from the continent.

There’s an interesting discussion going on at Freedom to Tinker about the interaction among the DMCA, DRM, and contract law. After David Robinson painted a stark dichotomy between legal restrictions on the freedom to tinker (such as the DMCA) or legally mandatory tinkering rights, I pointed out a middle ground: that the law should neither restrict the freedom to tinker nor give that freedom special legal status.

Cory Doctorow had a response that I think is worth highlighting:

I think that an important point is often missed in discussions of this sort: that a marketplace works best when both opponents and proponents of business-models engage in discourse and attempt to sway customers towards or away from a market.

So while I favor the abolition of the DMCA and the clarification of copyright law to improve the tinkerer’s lot, I likewise believe that it is useful and good to warn people that in a no-DMCA world, it would *still* be a bad idea to contract out of your freedom to tinker, and to agitate against the contracts under discussion here.

There’s an important distinction between the two positions: On the one hand, I think that the law regarding the DMCA should be changed–this is a political/legal response I want to see from government. On the other hand, I have arguments I’d like to publicize arguing against accepting DRM even in the absence of the DMCA, but those arguments don’t call for a legal or governmental response, they merely seek to change a potential customer’s mind.

Imagine that there was a law against spearmint gum. I might want this law repealed. I might also want to convince you that you should buy spearmint gum and not cinnamon.

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I suppose you could argue that a 37-year-old father of two shouldn’t still be playing video games, but I love ‘em and just can’t give them up. I’ll probably still be playing when I’m 80 inside a virtual holodeck down in some lame Florida retirement community. (God I hope my Golden Years are that exciting).

These days, I just don’t have the time to play the more sophisticated action & adventure games that I used to love the most, so I now spend most of my time with “single-session” games, especially sports games that allow me to play a quick game and then put it aside for awhile. Last night, while I was sitting in my basement with my kids playing an intense Michigan vs. Ohio State matchup on EA’s marvelous new “NCAA Football 2007,” my mind started drifting back to all the other football games I’ve played through the years on multiple platforms. In particular, I remembered the very first sports game I ever bought was “Atari Football” back in the late 1970s. At the time, I thought it was about the most cutting-edge thing ever invented. Today, of course, it looks absolutely primitive. Just look at this! …

Atari Football.jpg

… And then look at this beautiful screen shot from the new NCAA Football game…

NCAA 2007.jpg

We’ve come a long way in a very short time!

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Corey Doctorow has a good article on the DMCA on Information Week:

The DMCA makes the kind of reverse-engineering that’s commonplace in most industries illegal in copyright works. For example, in the software industry, it’s legal to reverse-engineering a file-format in order to make a competing product. The reason: The government and the courts created copyright to provide an incentive to creativity, not to create opportunities to exclude competitors from the marketplace.

Reverse engineering is a common practice in most industries. You can reverse-engineer a blender and make your own blades, you can reverse-engineer a car and make your own muffler, and you can reverse-engineer a document and make a compatible reader. Apple loves to reverse-engineer–from Keynote to TextEdit to Mail.app, Apple loves reverse-engineering its competitors’ products and making its own competing products.

But the iTunes/iPod product line is off-limits to this kind of reverse-engineering. No one but Apple can authorize an iTunes/iPod competitor, and Apple’s not exactly enthusiastic about such authorization –the one major effort to date was the stillborn Motorola ROKR phone, which was so crippled by ridiculous Apple-driven restrictions that it barely made a ripple as it sank to the bottom of the cesspool of failed electronics.

Doctorow makes a good point about Apple’s own reverse engineering. I wonder if Apple believes it was guilty of adopting “the tactics and ethics of a hacker” when it reverse engineered Power Point in order to allow Keynote users to interoperate with Power Point users. Or for that matter, when they bundled Samba, a networking suite that was built by reverse-engineering Microsoft’s file and print sharing protocols, into Mac OS X. Maybe those products ought to be illegal as well.

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. The Wall Street Journal reported yesterday that Friendster has been granted a patent on social networking software. (Not surprisingly, Techdirt beat the Journal by three weeks) The patent in question is # 7,069,308, “System, method and apparatus for connecting users in an online computer system based on their relationships within social networks.” Here’s a sample from the “BRIEF DESCRIPTION OF THE INVENTION”:

An invitation system allows users to invite friends or acquaintances to join the system. Invitations may be sent, for example, by e-mail. The invited friend or acquaintance may accept the invitation, and then become a user of the system, as a `friend` of the inviting user. The new user is prompted to provide descriptive data and the relationship data for friends or acquaintances who they would like to join the system. It is a unique and important feature of the invention that the invitation system (as well as related communication systems within the invention) allows two users to confirm that they are “friends”, and therefore become designated as such in the system.

Users in the system further have the ability to provide information about one another. For example, one user might write a positive comment about a second user’s personality. In one implementation, the second user may accept or reject display of the comment. Further, in this implementation, any other users who are connected to the second user through any number of acquaintance pathways may see the comment as part of the “descriptive data” about the second user.

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