Articles by Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at

I recently subscribed to the Software Freedom Law Center’s podcast, and just finished listening to episode 5, in which SFLC director Eben Moglen talks about the history of copyright and patent law. It’s a bracing talk that’s bound to be controversial with a lot of people. And in particular, it’s framed in a way that’s not at all calculated to appeal to libertarians. With what I suspect is deliberate irony, he even uses the phrase “from each according to his ability, to each according to his needs” to describe what free software is all about.

Nevertheless, what struck me in listening to his talk was that even though Moglen’s rhetoric seems almost calculated to alienate libertarians used to aligning themselves with the political right, it’s awfully hard for libertarians to actually object to the substance of what the SFLC and the Free Software Foundation are doing. A quarter century ago, when Richard Stallman was upset with the trend toward away from free software, he didn’t run to Congress seeking legal changes. Rather, he sat down and started building an alternative. One that we know today as the GNU/Linux operating system. He did so without a penny of government support, and without expropriating any resources from his proprietary competitors.

And in the process, he provided a powerful counterexample to many of the standard tropes of copyright and patent debates. In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given monopoly rights in their creations. The rest of us can argue until they’re blue in the face about what a world with weaker copyright or patent protections would look like, but Stallman and company have bypassed that debate entirely by offering an existence proof of what an alternative world would look like. It’s awfully hard to argue something can’t happen when it obviously has.

Which I think is what gives Eben Moglen the credibility to deploy what I might otherwise regard as absurdly overwrought rhetoric. Most revolutionaries preach about the utopia that will exist in the future. In contrast, Moglen is talking about a utopia that’s being built as we speak. And happily for libertarians, it’s a utopia that’s being built without a shot being fired, or a tax dollar being spent.

One of the recurring internecine debates in the world of libertarian tech policy is over the philosophical status of copyright. On one side, you’ve got the camp that regards copyright as no different from any other kind of property right. People in this category tend to regard peer-to-peer file sharing as simple theft, and they often support draconian measures to ensure peoples’ “property rights” are protected, just as we would do if there were a rash of burglaries. On the other side, you have libertarians who regard copyright as a limited government monopoly that’s been granted for the pragmatic purpose of encouraging innovation. Folks in this camp tend not to think that copyright deserves the same level of strong enforcement we give to tangible property rights, and they tend to be more ambivalent about file sharing. You’ll often hear people in this latter camp talk about the need for copyright industries to find new business models that will be more resilient in the face of competition from peer-to-peer networks.

During his time at the Progress and Freedom Foundation, Jim DeLong was probably the most prolific advocate of the “copyright as property rights” theory. He hasn’t been as active in copyright debates the last couple of years, but he’s back with a long article about the fate of the newspaper industry. In it, he warns that unless newspapers can establish “a property rights–based monetization model, based on subscribers or control of advertising or both,” the newspaper industry will become trapped in a “‘tragedy of the commons’ situation” followed by “both individual and collective death spirals.”
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Deja Vu for Facebook

by on February 19, 2009 · 9 comments

Over at the New York Times “Room for Debate” blog, I’ve contributed my thoughts on the recent Facebook terms of service controversy.

Micropayments: Still Doomed

by on February 14, 2009 · 13 comments

Micropayments are an idea that simply won’t die. Every few years, there’s a resurgence of interest in the idea. Critics predict they won’t work. The critics are then proved right, as companies founded to promote micropayments inevitably go belly-up.

The latest iteration comes courtsey of Time magazine, which recently saw fit to run a cover story about how micropayments will save newspapers. And Shirky once again steps up to the plate to explain why micropayments won’t work any better in 2009 than they did in 1996, 2000, or 2003. (I wrote up Shirky’s arguments here and here) But for my money, the best response to the Isaccson piece is at the Abstract Factory blog:

Why did Time’s editors choose to run this article, rather than, for example, an article by Shirky or Odlyzko or any number of people who would write something more clueful? I hypothesize two reasons. First, Time’s editors themselves do not have a clue, and also do not have any problem publishing articles on a subject they have no clue about. Second, look at the author blurb at the bottom of the article (emphasis mine):

Isaacson, a former managing editor of TIME, is president and CEO of the Aspen Institute and author, most recently, of Einstein: His Life and Universe..

When you’re a member of the club, your buddies will publish any old crap you write; better you than some stupid professor nobody knows. We’ve seen this before.

I mentioned irony earlier. Isaacson has filigreed the irony with extraordinary precision. His article is inferior to material produced for free online by people who draw their paychecks from other sources (Shirky and Odlyzko are both professors who also work(ed) in the private technology sector). Furthermore, it is inferior as a direct consequence of structural weaknesses of traditional magazines. Despite its inferior quality, it presumes its own superior status by ignoring or dismissing contributions to the discussion which occurred outside of traditional “journalistic” media. Finally, taking that superiority as a given, it argues, poorly, that people ought to pay money for products like itself, because (quoting Bill Gates) nobody can “afford to do professional work for nothing.”

In short, Isaacson’s article not only fails to make its case, it actively undermines its own case while doing so.

Quite so. There’s more good stuff where that came from.

A Sopranos Mashup

by on February 9, 2009 · 8 comments

that’s very NSFW. But is it fair use?

Patents and Property Rights

by on February 9, 2009 · 8 comments

I should probably say a bit more about the substance of Ben’s property rights post, which wasn’t primarily a critique of people with tacky property rights websites. Ben focuses on the conceptually sound idea that property rights are really bundles of rights to dispose of particular things in particular ways. He emphasizes the diversity of these rights:

Text and designs are obviously different from household objects, but we all knew that. In fact, automobiles are also different from household objects. So is land, and the houses built on that land, which differ from each other. Your kidney is also significantly different. Oh, and commodities such as corn, which differ from corn futures. Correspondingly, the rights associated with all of these things are different.

He lists a variety of different rights we can have in some but not all of these things: transfer, sale, use, modification, exclusion, etc. What I think doesn’t get enough emphasis, however, is the “things” part. That is, an automobile, a kidney, and a bushel of corn are all discrete, well-defined things with respect to which which one can have rights. Everyone understands what it means to say that I have the exclusive right to use, transfer, or sell my car. By their nature, cars have only one person driving them at any given time, and so there’s an obvious need for some way of deciding who gets to drive which cars.

Now, compare that to someone who “owns” a “method for managing the consumption risk costs of a commodity.” Ben’s right that we’ve got a bundle of sticks here just as we do with the car. Had Bilski’s patent been upheld, he could have kept the patent for himself or licensed, given, or sold it to others. The problem is that it’s totally unclear what the “thing” is to which the sticks in this bundle relate. Reasonable people can parse the language of the patent and come to radically different conclusions about the scope of the patent right, all of them plausible. A patent is not the ownership of a pre-existing thing that needs an owner. Rather, the things over which the patent system gives people ownership are the creations of patent law. And in many cases, it makes little sense to talk about them as “things” at all.

Unfortunately, the patent bar has developed terminology that papers over these difficulties. We talk of owning a “technology” or an “invention” in the same way we talk about owning a car or a bushel of corn. But in reality, a “technology” is not a discrete thing in anything like the same sense that a car or a bushel of corn is. If I build a website that allows my customers to purchase things with one click, I may technically be infringing’s patent, but it strikes me as an abuse of language to say that I’m “stealing Amazon’s technology.” What many patents claim is not a specific “technology” or “invention” so much as a broad category of machines or processes that may be only loosely related to one another.

When we describe “inventions” or “technologies” as things that can be owned as property, that carries the implication that inadvertently writing software that’s similar to another company’s software is in the same moral category as stealing a car. I think that’s self-evidently absurd, and that adopting such morally loaded terminology impedes clear thinking. It’s important to remember that the “technologies” and “inventions” patents protect are more often loose categories of related machines or processes rather than sharply-defined entities. The language of property rights obscures, rather than illuminates, this point, and I think we’d all be better off if people stopped employing it.

Ben Klemens, whose work I’ve praised in this space in the past, has a new essay up that I found a little bit aggravating. It’s on the perennial question of whether it makes sense to describe patents and copyrights as property. I’ve been a critic of the term “intellectual property” for a few years. Ben’s on the other side.

What I disliked most about Ben’s piece was the condescending tone he takes toward property rights activists (like me). Klemens has little patience for property rights activists whose websites have “lots of clip art of flags and eagles,” and who are under the delusion that the holders of property rights have some kind of moral claim against government interference with those rights. Klemens also critiques neoclassical scholars who “will try to trip you up into thinking that society is built around natural, objective property rights rather than social construction.” Klemens concludes by arguing that “Sure, IP law is artificial, but physical property law is equally artificial; we’re just so used to it that we’ve forgotten.”

Now look, on some level this is indisputably correct. God doesn’t strike trespassers down with lightning; property rights are defined and enforced by fallible human beings. The problem is that Klemens argument proves too much. The same reasoning can undermine any moral or legal rights. On some level a woman’s right not to be raped is a “social construction,” but I don’t think that in any way diminishes the strong moral claim that each and every woman has not to be raped, regardless of what the rest of us regard as “socially optimal.”

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Steve Schultze and I don’t agree about network neutrality regulation, but he and Shubham Mukherjee recently gave a fantastic talk on public access to court records. By law, federal court proceedings are not subject to copyright protection. However, the federal courts have a byzantine web-based reporting system called PACER that offers 1990s-era search functionality and charges eight cents per page for access to court documents. Astonishingly, this includes search results. Run a search on PACER that turns up no results, and the federal judiciary will charge you eight cents for the privilege of learning that your search returned no results. Run a search on PACER that turns up a lot of results and you get charged as much as $2.40 for a single search. The system has no keyword search, and there isn’t a single, integrated PACER system: each district and circuit court maintains its own records, and so you must already know which court’s PACER web site to visit before you conduct your search.

The system generates about $60 million per year in revenues for the court system, at an incalculable cost to the rest of us. Access to these documents is essential to understanding the laws that govern us. They are not subject to copyright, and they should be made as widely and cheaply available as technically feasible. Twenty years ago, PACER was a great step forward when it was first implemented more than a decade ago, but it’s now painfully behind the times. Steve and Shubham are working on a paper on this topic, and I’m looking forward to reading it.

Slashdot Explains All

by on January 30, 2009 · 5 comments

Slashdot user “flyingsquid” suggests why Blizzard has had such a winning streak in federal copyright cases:

You, know, this could just be a coincidence, but a couple of weeks ago I was in Northrend and I ran into an orc named “JudgeCampbell”. He had some pretty sweet weapons and armor he was showing off, including a Judicial Robe of Invicibility and a Judge’s Battle Gavel of The Dragon, which did an unreal amount of damage. Also, he had all these really powerful spells I’d never even heard of before, such as “Contempt of Court” and “Summon Bailiff”. To top it all off, he had like 200,000 gold. I asked where he’d gotten all this stuff and he said he’d just “found it all in some dungeon”. It sounded kind of fishy to me, but I didn’t think anything much of it at the time.

I demand an investigation!

Great ESR EconTalk Podcast

by on January 30, 2009 · 11 comments

Russ Roberts’s excellent EconTalk podcast had an especially good episode last week as he had Eric Raymond of “The Cathedral and the Bazaar” fame on his show. ESR does a great job of explaining the economics of free software. And he offers a take on the network neutrality debate that is more reflexively hostile to the telcos than I think is justified, but that nonetheless gets the big points right: network neutrality is important, but government regulation isn’t a good way to protect it. He discusses his views in more detail here.

One minor quibble I had with ESR’s presentation: he distinguished Wikipedia from free software projects by saying that software could be judged objectively (either it works or it doesn’t) while editing Wikipedia is an inherently subjective activity. He suggested that for this reason, Wikipedia doesn’t work as well as free software. I think this ignores the central role of verifiability in Wikipedia’s editing process. The truth may be a matter of opinion, but it’s usually not a matter of opinion whether reliable sources have or haven’t made some claim. And as long as most of the reliable sources agree, which they generally do, it’s possible for an impartial observer to compare a sentence in Wikipedia with the corresponding sources and see if the sentence is a fair summary of the source.

Of course, this doesn’t work in every circumstances. Some topics are so intensely controversial that there is wide divergence among reliable sources, or sharp disagreement about which aspects of a topic to focus on. There’s just no getting around the fact that the Wikipedia articles on George W. Bush or abortion are going to be the subject of perpetual edit wars for years to come. But these articles are a relatively small fraction of what Wikipedia does. There are lots and lots of topics that are not especially controversial, and in those context Wikipedia’s decentralized editing process converges on the “right” answer (as judged by comparison to reliable sources) remarkably quickly.

On the flip side, it’s worth remembering that the free software movement has had a few bitter rivalries of its own over the years. Most of the time, free software converges on a reasonable answer and people walk away happy. Sometimes they don’t. Both free software and Wikipedia work astonishingly well most of the time.