December 2007

One of my favorite podcasts is David Levine’s Hearsay Culture, which I stumbled across this summer. I noticed recently that back in March he did a podcast with Richard Epstein, a giant of classical liberal legal thought, back in March, so I’ve been listening to that episode.

Epstein has long been one of my favorite libertarian thinkers. On most subjects, I find myself nodding along in agreement. But when he gets to the application of patent and copyright law to the technology industry he has a tendency to go off the rails pretty quickly. This is apparent in his Hearsay Culture interview as well. For example, about 25 minutes into the interview, he talks about the problem of patent thickets in the tech industry thus:

The question is, how do we know when there’s a blockade? Well, a lot of it depends on the topology of the landscape if you’re looking at physical resources, and the same thing will happen with respect to intellectual property. So just to take the general question, let’s start with a background on the tech side before we get to the documentary film. Do we think that the addition of any new patent in any particular area is going to increase or reduce the blockade effect of other patents? And the answer to that question is frankly my dear we don’t know in the abstract but the betting would be that the more patents you have, the fewer the blockades. Now why is that? If you imagine these things as being in an array. Suppose you have to go through six steps in order to get a process, and at every one of these steps you’ve got four alternatives. Well if that’s what’s happening, you’ve got a lot of choices at each stage and you’ll be able to bargain one off against another and presumably find a path through this thicket. Somebody comes up with a new invention, now instead of having four alternatives at the first stage you may have five. Or you’ll get a new invention which means that you don’t have to bargain with anybody at stages 6 or 7. And if that guy comes in with a blockbuster patent, he will not be able to charge more than the old 6 and 7 combination could have been able to do, and if he’s really good somebody else is going to come into that same field because the patent doesn’t give you a monopoly over the functionality as such, only the device or the invention that allows you to actualize that functionality. I mean, that’s not 100% correct, but it’s 95% correct for these particular points. Samuel Morse could patent the telegraph, he could not get control over all uses of the electromagnetic spectrum. So new inventions in the tech area generallly seems to me to expand possibilities by giving you alternative stepping stones through the thicket.

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Your Tax Dollars at Work

by on December 22, 2007 · 0 comments

This will go on as long as the government is awash in money.

Jason Schultz weighs in on whether the Richter Scales video was fair use:

Hard to say for sure, but in the end, it probably is a fair use. On the one hand, the Video does use Lane’s photo without permission or attribution. Plus, this is how Lane pays her rent. She takes and licenses photos for a living. Uses like this, if they were to become widespread, could potentially undermine her livelihood and thus, her ability to take photographs like the one used in the video. Thus, there is an argument under Factor 4 that this is not fair.

However, the other three factors probably weigh in the Video’s favor. First and foremost, what The Richter Scales did was what copyright law often calls “transformative use” — using other people’s copyrighted works in a new way that adds creativity and cultural value. And while perhaps not a direct parody of Lane and her specific work, the inclusion of the photograph in the video was part of an overall commentary on the world that Lane photographs and the people in it. One could even argue that Lane is a part of that world herself and thus, implicitly part of the subject matter TRS intended to comment on. (Note: I haven’t talked to TRS, so I have no idea what they intended). Some courts have found fair use in similar cases involving Barbie dolls, use of concert posters in a book about the Grateful Dead, the Mastercard “Priceless” ad campaign, a Family Guy parody of Carol Burnett, and 2 Live Crew’s cover of Roy Orbison’s “Pretty Woman.” Of course, other courts have come out differently, such as one decision over the use of Dr. Seuss-like rhymes in a book about the OJ Simpson murder trial. Still, overall, I think a court would find the video transformative and thus, that Factor 1 weighed in its favor.

Factors 2 and 3 would also probably weigh in favor of the Video. The photo is a published work depicting a factual occurrence (a person at a Web 2.0 event). It’s also being used for that purpose — to comment on the person being at the event. The amount of the photo taken is, of course, the whole thing, but with photographs its hard to apply this factor since few photos are useful in pieces. Courts have also found that when it is necessary to use another person’s entire copyrighted work to make your own commentary, that weighs in favor of fair use. Given that three of the four factors are likely in the Video’s favor (including the critical Factor 1), the Video is probably fair and not illegal.

As Schultz points out, this isn’t really the sort of issue copyright law was designed to resolve. Norms are likely to be more effective than laws in this sort of situation. Given that the video wasn’t a big money-maker, it’s not reasonable to expect them to pay her for using the photo, but it is reasonable to expect them to give her credit. And if they fail to do so, it’s worthwhile for the tech blogosphere to criticize them for failing to respect those norms.

Google is promoting its “privacy tips” video series. As I’ve noted before, this is good stuff. Over the long haul, education will be much more effective protection for consumers than privacy regulation – and it will have none of the costs of regulation in wasted tax dollars, market-distorting rent-seeking, and regulatory capture.

Conflict of interest warning!: I was a guest of Google at the recent International Association of Privacy Proffessionals dinner. As you weigh the credibility of what I’ve written here, you are welcome – indeed, encouraged – to consider the embarassingly close relationship I have with Google – how I basically survive on the rubber chicken dinners they sneak me once every . . . 40 years. If it appears that I am being too nice to Google, you are welcome to call me out on it. It is much more fun being mean, but it is important to be fair, so I do say nice things when I see good being done. Now that my disclosure is longer than the substantive post, I’m relatively sure that I won’t be regarded as easier than an FTC Commissioner after an Aspen Summit – at least not this time.

Wiki-Government

by on December 21, 2007 · 0 comments

Via PDF, Beth Simone Noveck, director of the Institute for Information Law & Policy at New York Law School, highlights the Peer-to-Patent experiment being conducted with the PTO in her very interesting article about using collaborative software in the regulatory process.

Our institutions of governance are characterized by a longstanding culture of professionalism in which bureaucrats–not citizens–are the experts. Until recently, we have viewed this arrangement as legitimate because we have not practically been able to argue otherwise. Now we have a chance to do government differently. We have the know-how to create “civic software” that will help us form groups and communities who, working together, can be more effective at informing decision-making than individuals working alone.

Good stuff. Here’s more.

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If you’re in D.C. and a lawyer or legally-minded, that’s two strikes against you you might be interested in attending the Third Annual Homeland Security Law Institute, January 17-18, 2008 at the L’Enfant Plaza Hotel in Washington, DC.

This program provides a comprehensive look at some of the most critical issues and initiatives being undertaken as part of the Nation’s Homeland Security agenda. We have an impressive group of former DHS employees, as well as key figures from the private sector. Keynote speakers include The Honorable John Ashcroft, Former Attorney General of the United States, and The Honorable Congressman Bennie Thompson, Chair of the House Committee on Homeland Security.

I’ll be speaking on a panel Friday the 18th entitled: Immigration Policy and Legal Issues: Do All Roads Lead to a National Identity System and if so What are the Implications?

Computing in the Cloud

by on December 21, 2007 · 0 comments

I’ve been invited to participate in a panel at Princeton’s “Computing in the Cloud” conference on January 14-15. The topic of my panel will be:

In cloud computing, a provider’s data center holds information that would more traditionally have been stored on the end user’s computer. How does this impact user privacy? To what extent do users “own” this data, and what obligations do the service providers have? What obligations should they have? Does moving the data to the provider’s data center improve security or endanger it?

This is an interesting and open-ended question, and one about which I don’t have a lot of settled opinions. I’ll be speaking alongside two law professors, so I’ll probably leave any legal analysis up to them and focus more on policy or technology issues. I’ve written about this in the context of Facebook over at Techdirt; those posts may make a good starting point for my contribution to the panel.

But I’m curious what TLF readers think about these questions. And in particular, what are the must-read articles or papers on the subject?

It looks like it’ll be a fascinating couple of days, so if you’re in the area, be sure to sign up so you get some free lunch.

Locke on Copyright

by on December 20, 2007 · 14 comments

Some commentators have defended copyrights as natural rights under Locke’s labor-desert theory of property. On that view, copyright qualifies as a natural right for the same reason that tangible property does: Because an author mixes herself, through her creative effort, in her expressions. Ayn Rand, Herbert Spencer, and Lysander Spooner represent prominent proponents of that justification of copyright.

That facially plausible extension of Locke’s theory does not, however, withstand close scrutiny. His labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression–not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke’s thought and into the abstractions of intellectual property thus ought to leave his name behind.

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As part of a 20 minute slide show produced by the New York Dept. of Criminal Justice, Elliot’s Spitzer’s administration has cited a well-known Internet hoax as a helpful resource for parents.

The site cited, Mothers Against Videogame Addiction and Violence (mavav.org) claims to be:

organization is dedicated to educating parents of the world’s fastest growing addiction and the most reckless endangerment of children today: Video Game Addiction and Violence in Underground Video Game Cultures

The site goes on to claim that:

Video game addiction is without a doubt, becoming this century’s most increasingly worrisome epidemic, comparable even to drug and alcohol abuse. All the while, the video game industry continues to market and promote hatred, racism, sexism, and the most disturbing trend: clans and guilds, an underground video game phenomenon which closely resembles gangs.

MAVAV is actually the creation of a New York design school student, a well documented fact that is easily uncovered by research. And by research I mean about 2 minutes Googling the farcical organization. Too great a burden for the NY DOJ.

The NY Justice Dept. report also contained a reference to several over-hyped stories of questionable reliability and is riddled with errors. In addition, the report claims that Seung Hui Cho, the Virginia Tech killer, was a Counter-Strike player, a claim that has since been shown to be unsubstantiated.

If this is the worst indictment that the insidious legal mind of Elliot Spitzer can produce, gamers might not have to worry about New York’s proposed regulation of video game sales.

Hat tip: GamePolitics.com

iPhone?

by on December 19, 2007 · 18 comments

My Razr’s screen just stopped working, putting me unexpectedly in the market for a new cell phone. I’m firmly on the Apple bandwagon, so the natural choice is an iPhone, But on the other hand, I’ve been less than impressed with the way Apple has treated people trying to extend the functionality of its phones, and I haven’t been paying close enough attention to the cell phone market to know if there are other phones of comparable quality that haven’t had the benefit of Apple’s Reality Distortion Field.

So: Is the iPhone worth the money? What other phones should I be considering? And if I do go with an iPhone should I wait for MacWorld to see what Uncle Steve might have up his sleeve?