Why do Google Print’s critics, such as the University of Houston’s Raymond Nimmer, have so much trouble being accurate when they’re describing Google Print?
Google argues that a commercial company, for its own commercial purposes, can copy and distribute the property of another person without the property owner’s permission simply because if (Google) believes that its commercial interests will benefit.
Google Print doesn’t distribute copyrighted books, aside from displaying small snippets that are generally agreed to be fair use. The important question raised by the case, which hasn’t been decisively answered before, is whether it’s a violation of copyright to copy but not distribute a copyrighted work.
The rest of his post keeps reiterating the same misconception: that Google Print is distributing copies of copyrighted books. I’ll put the detailed fisking below the fold for those of you who don’t want to read me debunk the same bogus claim over and over again.
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Not much in the case of Sony’s latest clumsy attempt at copy protection. The Register links to a report at Sysinternals that investigates the sketchy things that Sony does to prevent you from making too many copies of its CDs:
The Sony CD creates a hidden directory and installs several of its own device drivers, and then reroutes Windows systems calls to its own routines. It intercepts kernel-level APIs, but then attempts to disguise its presence, using a crude cloaking technique. Disingenuously, the copy restriction binaries were labelled “Essential System Tools”. But the most disturbing part of the tale came when Russinovich ran his standard rootkit-removal tool on the post-Sony PC. “Users that stumble across the cloaked files with a RKR scan will cripple their computer if they attempt the obvious step of deleting the cloaked files,” he writes.
So here’s my question, in all seriousness: how would the DMCA apply to this case? Poorly-written device drivers can be a threat to your computer’s stability and security–not to mention that it apparently slows down your computer even when you’re not playing a CD. But maybe removing it would constitute circumvention of a copy-protection scheme? Maybe I can remove it when the CD is not in the computer, but I have to allow it to be re-installed when I’m playing the CD? Would an anti-virus program that prevents it from being installed constitute a circumvention device? What if I disable the “autorun” feature in Windows? Is that circumvention?
The DMCA debate often proceeds as though “circumvention” is a clearly defined, obvious concept. But I think this example shows that it ain’t so. I assume that disabling auto-run (which requires changing one value in the registry isn’t illegal, but then where do you draw the line? Does “circumvention” require a minimum amount of technological sophistication? Or does the law simply require that I keep badly written device drivers on my system forever if they were put there as part of a DRM scheme?
James DeLong has a good post on the copyright issues raised by Google Print. He highlights past cases in which property rights have been changed to reflect changing technological and institutional realities:
The controversy highlights one of the most important dimensions of property rights, in both theory and practice, which is that property rights regimes are not cast in stone. They are established under a particular set of technological and institutional conditions, and as these change some rethinking and evolution is required and inevitable.
Such change is tricky business, because any concession that property rights are malleable turns into a handy excuse for massive rent-seeking. One road to riches is to persuade governments to redefine property rights so as to take what other people had and give it to you, pleading the need for adaptation to new circumstances.
I actually think there’s a fairly clear distinction to be drawn between changes to property rights on the one hand, and clarifications on the other hand. He talks about the case of airplanes. In theory, property law said that a property owner owned all the air above his land, but with the advent of commercial aviation, that doctrine quickly fell by the sayside. Here’s DeLong’s take:
So, obviously, there was a massive transfer of property rights in the heavenly sphere away from landowners to the nascent aviation industry. You can say that property rights were simply redefined so as to recognize the reality that you do not really own all the way to the sky, or you can say that pre-existing rights were indeed taken, a la eminent domain, and that compensation was due, but that the value of the right to the landowner was zero, so the compensation due was zero. But there is still a redefinition involved because, obviously, the right to extract ransom from airplanes, once they have been invented, is not zero.
I think there’s a third way to think about it: property rights were neither re-defined or transferred. Rather, an ambiguity in the existing rules was resolved. The common law property rights doctrines that existed at the time of the Wright Brothers flight had been developed over centuries by judges who had never seen, and probably couldn’t have imagined, commercial airflight. So while the official doctrine was that you owned the air above your land, it wasn’t clear what that meant. No one had ever been able to fly, so what exactly constitutes tresspass wasn’t well-defined. You could make a plausible argument that flying over someone’s land at 10,000 feet was so fleeting a presence on any particular landowner’s land (indeed, it might be difficult to determine exactly whose land a particular airplane passed over) that it didn’t merit being called tresspass.
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I’ve got a new article up at Reason about a disingenuous argument that’s often heard in copyright debates: that those who defend the traditional scope of copyright (including principles such as fair use and limited terms) are really just opponents of intellectual property who want to (as Jame DeLong put it a couple of months ago) “abolish intellectual property rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government.”
Now obviously there are a few IP anarchists out there who want to do precisely that. But that’s not the position of mainstream copyright industry critics. Rather, they are defenders of America’s copyright traditions, which delimits the rights of copyright holders to ensure that copyright does not smother innovation or impoverish our culture.
These are complicated issues. Products like Google Print and Grokster raise difficult questions about how the law can best ensure that artists and authors are compensated without stifling what are undeniably important technological advances.
But it seems that a lot of people on the other side don’t like dealing with these nuances. So instead, they’d like to frame the debate as being a disagreement over “property.” There’s a “pro-property” side that thinks piracy is bad, and an “anti-property” side that doesn’t think piracy is a big deal, just as in Kelo, there was a pro-property side that wanted to rein in eminent domain abuse and an anti-property side that doesn’t think eminent domain abuse is a big deal.
Efforts like the Grover Norquist’s Property Rights Alliance, which I discuss briefly in my article, are all about convincing people on the libertarian and conservative right that that’s what’s at stake. By putting the RIAA, MPAA, et al side-by-side with anti-Kelo activists, they subtly reinforce the idea that they’re fighting the same battle–that, like the eminent domain debate, it’s an argument between a pro-property right and an anti-property left. As I explain in my article, that’s not what’s at stake, and it’s vital that that framing not be allowed to dominate the copyright debate.
The FCC today unanimously approved SBC’s acquisition of AT&T as well as Verizon’s purchase of MCI, ending a federal approval process that began early this year. For these mergers to take effect, now all that is needed is approval by a few remaining state regulators.
Symbolically, the mergers revolutionize the telecom industry–ending for all intents and purposes the 20-year split between long-distance and local portions of the industry, and he political warfare that went along with it. Yet, there was always less to the mergers than met the eye. Their effect on the marketplace will actually be quite limited. It been a few years since consumers looked to AT&T and MCI for telecom choice, moving instead to wireless and net-based alternatives. And with E-Bay and Google now playing on the telecom field, the significance of these mergers wi. (See “Ma Bells’ Retirement: No Big Deal“) And, with SBC’s announcement that it will change its own name to AT&T, even the cosmetic change is diminished.
Still, there’s a fair amount of gain to be had by integrating these firms into SBC and Verizon respectively. Yet, these gains will be limited, thanks to regulatory conditions placed on the deals. Each firm pledged to abide by restrictions demanded by the Commission, ranging from leasing lines toEven this will be limited, though, by 13 specified conditions, ranging from a freeze on UNE rates to maintaining “settlement free” peering policies for Internet backbone traffic (though the Commission found the mergers did not threaten competition in this market). The conditions even included special commitments regarding the state of Alaska.
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CEI will be hosting a lunch event on the Hill this Friday at noon. The focus will be on how we should be thinking about telecom reform in evolutionary terms, of phasing-out current law while not adding new laws to cover new technologies. I’ll be speaking and so will fellow TLF member James Gattuso, Randy May of PFF and Blair Levin of Legg Mason. The discussion of telecommunications regulation can quickly get bogged down by details. And while details are important, we must keep true to a broad deregulatory vision that I outlined (along with my colleague Wayne Crews) in Communications without Commissions: A National Plan for Reforming Telecom Regulation. The essence of my proposal is a series of phased deregulatory initiatives: 1) Setting jurisdictional boundaries; 2) Removing current economic and social policy regulation; and 3) Reforming the FCC and Spectrum Management. This deregulatory vision has been absent from the two main bills that have been proposed, though Senator Ensign’s bill is more deregulatory than the House Commerce Committee Discussion Draft bill.
[Cross-posted from the PFF blog]
As Ray noted in his essay last week on Clearwire and VoIP blocking, I have long argued that broadband service providers (BSPs) will eventually will end up price differentiating based on bandwidth usage, in part because of the futility of differentiating based on service bundling or technological applications / usage.
What I mean by this is that most attempts to discriminate against specific websites or applications are likely doomed to fail or end miserably for the carriers. First, with Net surfers getting more sophisticated with each passing day, it will be very difficult to block most activities without them finding ways around the restrictions. Second, attempting to discriminate against certain types of bits is complicated for the carriers and will likely require more effort than it’s worth. Third, even if carriers were able to discriminate against certain bits, if they went overboard it would spark an intense consumer backlash and a likely exodus to an alternative broadband provider. (And if a serious alternative backbone provider was not yet available in that region, excessive blocking / meddling by the incumbent BSP would likely serve as the best incentive for new entrants to enter the market and offer a less-restricted surfing experience.)
But critics claim that I’m full of it and some of them pointed to last week’s front-page story in the Wall Street Journal as evidence. In their article, “Phone, Cable Firms Rein in Consumers’ Internet Use,” reporters Peter Grant and Jesse Drucker claim that, “Several large telephone and cable companies are starting to make it harder for consumers to use the Internet for phone calls or swapping video files.” The story goes on to note that some BSPs “have begun to closely monitor the uses of their network with an eye toward controlling activity by users who are swapping movies, TV programs, pornography and other video files. Operators say file sharing is growing so quickly, it threatens to sharply slow down other uses.”
What are we to make of this? Are BSPs hell-bent on controlling our web-surfing experiences and even resorting to “discrimination” against certain types of uses or activities? Should that be illegal? Are there other ways of handling this problem?
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The market research firm In-Stat reports that 9.4 percent of the nation’s 193 million wireless subscribers have already made their mobile phone their primary phone and the firm expects that percentage to grow to 23 to 37 percent by 2009.
Hopefully our wireline-obsessed policymakers in Washington will read this report and realize that their seemingly endless efforts to regulate wireline networks will only seek to further disadvantage those networks relative to the new wireless and Internet-based competitiors. Of course, it is more likely that lawmakers and regulators will simply respond to this news by finding new ways to regulate new wireless technologies and competitors.
This week, I’m debating some folks on data security regulation at CNET News. com. Could be interesting and informative.
So far, the debate has transmogrified, at the hand of News.com’s editors, from data security regulation into “IDENTITY CRISIS” and my first post was provocatively (mis-)named “Why should people trust the industry?” – a question that I think is off-point and needlessly loaded. An inauspicious start but, still, check it out.
Highlight: California State Senator Joe Simitian calls regulating a “duty.”
Apparently, in PFF land a “satire” is when you blatantly misrepresent your subject and then heap scorn on the straw man you’ve created.
The article strongly implies that “Sal” would watch the movies and listen to the music she copies, and that the indexing service would just be a gimmick to excuse the copying. But of course, that’s the whole point: no human being will ever see the book copies Google is making. Moreover, the average book is about 100,000 words long, of which Google will show about 50 words. So to be analogous, Sal’s service would have to play less than one second (not 30 seconds) of a 3-minute song or 5 seconds of a 2-hour movie.
In short, once we modify Sal’s plan to accurately reflect how Google Print would work, it becomes clear that her service would be (1) completely useless and (2) no threat whatsoever to copyright holders. This is satire?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.