February 2006

EFF’s Big Tent

by on February 28, 2006

I just sent the following email to the Electronic Frontier Foundation:

From: Tim Lee
To: membership@eff.org
Subject: AOL Campaign

As an EFF contributor, and I wanted to express my disappointment at EFF’s decision to expend resources publicizing its criticism AOL’s GoodMail plan. While the technical merits of the plan are debatable, I don’t really see why EFF–an organization ordinarily dedicated to fighting to protect our rights online–should be involved in this fight. AOL’s customers voluntarily chose to subscribe to the company’s email service. If, as you predict, AOL’s policies are detrimental to their customers’ user experience, the customers are free to sign up with any one of dozens of other email services, many of which are available for free.

As I write this, there are many attacks underway on Internet users’ freedom. EFF’s viability as the “ACLU of cyberspace” depends on its remaining focused on that core mission. If it branches out into other issues, you risk alienating people who agree with you on core civil liberties issues but disagree on unrelated issues such as AOL’s email policies.

In the interest of maintaining the EFF “big tent,” I hope that you will refocus your efforts on fighting threats to users’ rights, and leave it to others to criticize the business decisions of companies like AOL.


Tim Lee

I was briefly a financial supporter of the ACLU, until I got their first newletter, in which the executive director talked about their fight to protect affirmative action against California’s Racial Privacy Initiative. Now, reasonable people can disagree about the initiative, but I had trouble understanding why a civil liberties organization would be defending the government’s ability to discriminate on the basis of race.

They haven’t gotten any money from me since. I would gladly be an ACLU supporter if they would focus exclusively on genuine civil rights issues like free speech and privacy, but if they’re going to branch out into supporting generic left-wing causes, I’d rather give my money to a civil liberties organization whose positions I support 100% of the time.

I hope that the EFF doesn’t succumb to the same temptation. I recognize that most of their supporters are probably left of center, but I think they’re a lot stronger if they have some of us right-wingers on their team too. They jeopardize that broad base of support every time they wander off the reservation, as they have in this instance.

According to news reports, Democratic Sen. Jay Rockefeller (D-W.Va) is planning on trying to force the Senate Commerce Committee to include a controversial cable censorship proposal in a broad-based telecom reform bill the Committee might consider shortly. Along with Republcan Sen. Kay Bailey Hutchison (R-TX), Rockefeller introduced S. 616, the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005.” (I penned a lenghty analysis of this bill in the a PFF paper last year entitled: “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S. 616, The Rockefeller-Hutchison Bill.”)

In a nutshell, the Rockefeller-Hutchison bill proposes to roll the old broadcast industry content control regime onto subcription-based media outlets, namely, cable and satellite television distributors. James Reid, Sen. Rockefeller’s top telecom policy aide, told a crowd at a National Association of Broadcasters conference yesterday that “Sen. Rockefeller plans to offer his bill, in totality, or section-by-section, as amendments to the telecom bill as this goes forward.” If implemented, the bill would:

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Jim DeLong has responded to comments on his shopping cart analogy – the idea that copying intellectual property is like taking a shopping cart – by pointing out that the marginal cost of producing a shopping cart is very low, just like the marginal cost of producing intellectual goods. His conclusion: the distinction between physical goods and intellectual goods is “one of degree, and often a slight one.”

Jim has not identified who has missed his point, and IPCentral doesn’t publish comments, so I’m going to assume that he’s responding to the posts and comments here on TLF.

The distinction I made between intellectual and physical goods in my long and windy post comes at a more basic level. I explored why property rights originate in the first place. In tangible goods, property rights exist to prevent conflict in the context of scarcity. In intellectual goods, property rights exist to prevent conflict in the context of abundance.

And we should be entirely clear that intellectual goods are abundant. Your computer has copied this post so that you could read it. Doing so has rendered no one less able to do so. Loading it from servers I theoretically pay for cost me a wee bit, but if you were to cut and paste this text, you could reproduce it at zero cost to its original producer/owner. Try doing that with a shopping cart! There is a difference between “tending toward zero” and “zero” – a difference of kind, not degree.

It could be that Jim D. is wedding intellectual and tangible property through a new theory: property rights arise as a natural consequence of things being produced from other things at marginal cost. This mixes the roots of property rights in natural justice with the economics of production, and I think it’s unworkable, but if that’s a theory he wants to defend . . . .

More likely, Jim is appealing to the unfairness of expensive pieces of intellectual property being stolen. I agree that violating copyrights is wrong, but I’m not sure that the marginal theory of value applies well in the intellectual property environment. Indeed, the copyright/patent clause in the constitution seems to call mostly for application of the labor theory of value. We should reward creators in amounts that promote the progress of science and useful arts.

Finding the level of reward that does this is difficult, but abandoning the task and adopting the marginal theory of value would probably reduce welfare compared to a regime that judiciously rewards creativity. It is my opinion that allowing the “Rambo” franchise to transfer more than a billion dollars from consumers to producers was wrong when consumers could have gotten the same value, and possibly much more, at half the price.

Dr. John Rutledge offers a perspective on Chinese censorship, greatly informed by his frequent travels there. An excerpt:

I use the word “attempt” because, as any parent can tell you, controlling the communication of young people is impossible. That’s just as true in China as in the US. The kids there have cell phones too. And like our kids they don’t talk with each other any more; they just send IM’s (Instant Messages).

They are also good at circumventing restrictions by inventing new words to replace the keywords the censors dislike.

Young people I have spoken with in China (they actually “talk” with old people like me who don’t know how to IM) tell me they have easy access to 95% of the information on the Internet, although they sometimes resort to Internet Cafe’s to do so.

Thus I persist in optimism.

I have co-authored a paper on orphan copyrights that is now out from the Michigan Telecommunications and Technology Law Review. You can get it here (PDF). In the article we define the orphan works problem and show how it interferes with the use of creative works. We also describe the causes and costs of the problem, critique four of the leading proposed solutions, and propose a new and practical solution of our own (basically a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense. If, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability.) The Copyright Office issued its orphan works report earlier this month, and the solution they recommended is similar to ours. Still, Congress has to act before the problem is solved and we hope our paper will be useful in the debate. We would certainly appreciate any comments you might have.

A Common-law Approach to DRM

by on February 26, 2006

Following a citation from Doug Lichtman’s latest paper on the legal implications of DRM, I found this longer paper on the legal status of self-help mechanisms. It covers a lot of the same ground, but it does so much more thoroughly, and includes some interesting examples outside the realm of high tech. I was particularly amused by the dispute between the Chicago cubs and the owners of neighboring buildings, who were erecting de facto skyboxes on their roofs and selling tickets to watch the Cubs play. This set off an arms race, in which the Cubs erected structures to obscure their view, while the property owners made plans to raise the height of the skyboxes to compensate. Sadly, the parties reached a profit-sharing agreement before courts could rule on the legal merits of the dispute.

The part I liked best about the paper was his discussion of the Grokster decision that begins on page 47. For example:

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More Common Sense

by on February 24, 2006

It appears that Judge Spenser flinched from issuing a BlackBerry injunction. He continued to rattle his saber, but he stopped short of ordering the network shut down. And for good reason–you don’t piss off the majority of the nation’s lawyers and business execs without consequences.

Meanwhile, the patent office issued another rejection of an NTP patent. Things look pretty bleak for the nation’s leading patent troll.

Uncommon Common Sense

by on February 24, 2006

I never want to disappoint Jim (and in my timezone it’s only 9:46 AM, so he wins his bet), but I don’t have a whole lot to say about this other than “duh”.

Update: Well, OK, I do have one other thing to say about Goldberg’s comments: Steve Jobs agrees with him:

A lot of [music execs] didn’t use computers–weren’t on e-mail; didn’t really know what Napster was for a few years. They were pretty doggone slow to react. Matter of fact, they still haven’t really reacted, in many ways. And so they’re fairly vulnerable to people telling them technical solutions will work, when they won’t. When we first went to talk to these record companies–you know, it was a while ago. It took us 18 months. And at first we said: None of this technology that you’re talking about’s gonna work. We have Ph.D.’s here, that know the stuff cold, and we don’t believe it’s possible to protect digital content.

Of course, he doesn’t talk about this point much now that DRM is helping Apple to cement their dominance of the digital music business. But Jobs knows perfectly well that DRM doesn’t benefit the recording industry.

It’s a safe bet that Larry Page knows it too, but made the same calculation Jobs did: Hollywood won’t do business with Google unless Google agrees to wrap their content in DRM.

Tim Lee Betting Pool

by on February 24, 2006 · 4 comments

As I write this, it’s 9:33 a.m. Eastern. I bet Tim Lee will have a post up about this (and/or this) by 9:54 a.m.

On Tuesday I participated in a very interesting roundtable discussion on the future of content regulation in a multi-media world. The event was held at Yahoo! headquarters in Sunnyvale, CA and it featured representatives from a wide variety of companies and private organizations including: Google, Microsoft, AT&T, Verizon, AOL, Yahoo!, TRUSTe, the Kaiser Family Foundation, and Children Now. Our discussion focused on how to craft workable, private parental controls for Digital Age media content.

The roundtable was hosted by Stephen Balkham, CEO of the Internet Content Rating Association (ICRA). ICRA is an organization which works to create a safer online environment for kids by devising workable screening solutions for parents. In particular, ICRA has been a pioneer in the field of Internet content labeling and filtering. The organization has developed a system of objective content descriptors that website operators and other online media providers can use to label their content. Some of the companies and organizations listed above, as well as many other Internet, media and telecom companies, have already signed agreements with ICRA to use their content labels. Most recently, AT&T and Verizon agreed to use ICRA system to label their content offerings.

The Challenges of Controlling Content in a World of Media Abundance
I kicked off the roundtable with a “50,000-ft.” overview of the challenges that lie ahead. My remarks were drawn from the introduction to my new book on content controls in a world of media convergence. At the conference, as in my book, I put forward the thesis that content regulation, as we have traditionally understood it, is doomed. This is because a confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of media programming. The demise of content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.

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