February 2006

A Plan That Doesn’t Fight Spam

by on February 7, 2006

This proposal by AOL and Yahoo! to charge postage for bulk email doesn’t strike me as a terribly good idea. It’s pitched as an anti-spam tactic, but that doesn’t seem right. Spam will still be spam. It will continue to be filtered out as best as AOL is able using traditional spam filters. Some spam will continue to get through, just as it does now.

What AOL and Yahoo are doing is attempting to take a cut every time a legitimate business wants to communicate with its customers. For example, I’ve given Apple permission to send me occasional emails: I like their products and don’t mind an occasional sales pitch. I know that if I get tired of those emails, I can banish them with an “unsubscribe” request. Apple values its relationship with me and wouldn’t risk my anger by sending emails after I’d asked them to stop.

I don’t see how I benefit in the slightest if my ISP begins charging Apple for the privilege of sending me those emails. To the contrary, by discouraging some companies from offering bulk-email subscription services, I would actually be made worse off if the policy is enforced aggressively. Smaller companies, non-profits, and others on tight budgets might decide that they simply won’t deliver their emails to Yahoo and AOL email addresses.

Whatever benefits this plan might have for consumers (so far, I’m not seeing any), fighting spam is not one of them. While I fully support their right to charge for the valuable service they provide, it seems misleading to pretend this plan is somehow for the benefit of their users, rather than simply a way for them to generate more revenue.

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More on Physical, Technological, and Legal Barriers

by on February 6, 2006 · 6 comments

The following passage is from the introduction to my forthcoming paper on the DMCA. I thought it was particuarly relevant to the discussion below about legal versus non-legal barriers:

As Robert Frost famously noted, good fences make good neighbors. Fences demarcate property lines, enhance privacy, and prevent unauthorized entry. No one would dispute that fences are vital to protecting private property rights.

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Is the DMCA a Legal barrier?

by on February 6, 2006

Solveig Singleton comments on my recent post about the dismal state of DRM standards.

She emphasizes that DRM, however imperfect, is a second-best solution to the problem of piracy. I think we just disagree about that: I don’t think DRM is an effective piracy deterrent, nor do I think employing DRM technologies is an effective business strategy. But since I’ve made that point in the past I won’t rehash it now.

What I do want to comment on, though, is this:

Physical or technological barriers, DRM included, are in a lot of ways preferable to legal ones. They operate by prevention. They are responsive to consumer demand. They operate across international boundaries. They don’t have associated policing or enforcement costs (though they aren’t free, either). Imagine if the police had to keep burglars out in an environment where no one had thought of or invented locks on doors, or even walls. It would be grossly inefficient, even absurd.

I’m not sure what to make of the contention that DRM has no enforcement costs, and is not a “legal barrier.” DRM gets its force not by technology alone, but by a legal prohibition on tinkering with that technology. It requires doing such things as punishing people who make unauthorized DVD-playing software, unauthorized streaming video players, and unauthorized iTunes Music Store clients.

Ms. Singleton may consider these restrictions to be a necessary cost of preventing piracy. But regardless, they are legal restrictions. They require the use of police and courts to enforce. They restrict our freedom to tinker with the electronic devices we legimately own–a right that may not be important to her but is of importance to a lot of computer geeks. And they should, I would hope, at least be treated with skepticism by libertarians.

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Thoughts on Libertarians and IP

by on February 6, 2006 · 5 comments

Here are some of my thoughts on intellectual property in the classical liberal tradition, since we’ve started in on this. This is a series, and it isn’t done yet. Others have also posted in this series at the ipcentral blog (category “Liberty”); these are just links to some of my own basic entries. I haven’t gotten to Jim Harper’s “Malum Prohibitum, Malum in Se” argument yet, for example. Patience, Jim.

I. Introduction–Because You Asked, Libertarians and IP

II. Rights in Ideas

III. Enforcement Problems.

IV. Natural Law

V. Public Choice and Rent-Seeking

VI. Monopoly?

VII. Alternatives, and more alternatives, and more…

Background: I used to be an IP anarchist, a la Tom Palmer and Tom Bell. But then I spent a few years working at CEI at the time that Jim Delong was also there. I was party to and audience to many, many arguments about IP, mostly involving Jim, Fred Smith, and various others. And I was persuaded that there is something to this IP stuff after all, that it is more like physical property than I ever wanted it to be. I boosted it in my mind into the category of hard problems. I don’t think I had ever done this with a policy problem before, so I’m not worried that I have any alarming tendencies to do so. And there it remains to this day.

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The SlingBox, Space-Shifting and the Future of Broadcasting

by on February 6, 2006

I’ve been wondering how long it would be before a major copyright spat developed over the SlingBox and its incredible “space-shifting” technology. For those of you who have never heard of it, the SlingBox is a set-top device that allows consumers to retransmit their home television content to themselves no matter where they are at in the United States.

In other words, any TV show, local news program, or regional sporting event that a viewer would be able to watch if they were sitting at home is now be available to them on-the-road, thousands of miles away from their TV sets. So long as the consumer has a computer and a broadband connection, the SlingBox can make “anywhere, anytime” TV on the PC a reality.

A few years ago, techno-pundits were dreaming of devices such as these, but today you can go down to your local BestBuy and purchase one for just $250. It’s another sign of how media /TV /PC convergence is no longer just hype; its marketplace reality.

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Lowering the Bar

by on February 3, 2006

This proposal from IEEE for a “patent lite” regime to augment the current patent system strikes me as a very bad idea. It would lower the bar for patents by eliminating the obviousness requirements, thereby expediting the review process and allowing “limited patents” to be granted more quickly. And “limited patents” would have a term of only four years.

This proposal seems like it would take the worst features of our current patent system and make them even worse:

In fact, no examination–beyond a check to see that the minimum filing requirements are met–would be performed before issuing a registration number, which the patent owner would be required to use alongside the invention to gain protection. Because there would be no official determination of novelty, there would be no presumption of validity for the limited patent. Anyone who pays an examination fee and submits prior art showing the protected item is not novel could challenge the limited patent.

Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation. At the time of the filing of a lawsuit, the proceeding would be stayed pending the patent office’s examination. That exam would take less time than a regular patent examination, because obviousness would not be considered. In addition, the alleged violator of the protection would be able to provide prior art for the examiner to consider, evidence that would substantially reduce the cost and duration of litigation, particularly when there is evidence that protection should not be granted because the technology isn’t novel.

Because the goal is to prevent knockoffs, it would protect against these who were aware of technology in the market. Showing that the technology had been independently created before the patentee’s first commercial use would be an absolute defense. But it would be a personal defense; the patent would still be valid against others who cannot show substantial development of their products prior to the patented product’s introduction.

I think the idea of trying to “prevent knockoffs” really gets to the heart of what’s wrong with software patents in the first place. Google is a knockoff of Altavista. Windows is a knockoff of the Macintosh. Linux is a knockoff of Unix. Internet Explorer is a knockoff of Netscape. Excel is a knockoff of VisiCalc. Ordinarily, we call such knockoffs “competitors.” Yet in the bizarro world of software patents, when a company becomes “aware of technology in the market” and decides to build their own technology to do the same job, (even if it’s developed independently) that’s something the law ought to punish.

Patents are supposed to protect specific implementations of an idea, not the idea itself. “Knockoffs” are supposed to be permitted–even encouraged–as long as the knockoff isn’t implemented in the specific way described in the patent. But because of the nature of software, there isn’t any clear difference between an idea and its implementation. (And implementations are already protected by copyright, so it’s not clear why addition protection is needed at all). As a result, you wind up with broad concepts, such as one-click shopping or wireless email being granted patent protection. This proposal will only make that problem worse.

Hat tip to Mike.

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Network Neutrality: For the Environment!

by on February 3, 2006

I don’t think anyone’s ever accused The Nation of being a magazine of sober or nuanced thinkers. But this article on network neutrality is strikingly clueless and hysterical even by that magazine’s standards:

Without proactive intervention, the values and issues that we care about–civil rights, economic justice, the environment and fair elections–will be further threatened by this push for corporate control. Imagine how the next presidential election would unfold if major political advertisers could make strategic payments to Comcast so that ads from Democratic and Republican candidates were more visible and user-friendly than ads of third-party candidates with less funds. Consider what would happen if an online advertisement promoting nuclear power prominently popped up on a cable broadband page, while a competing message from an environmental group was relegated to the margins. It is possible that all forms of civic and noncommercial online programming would be pushed to the end of a commercial digital queue.

Sounds pretty scary! How are broadband providers going to accomplish this feat?

Beats me. Websites will still be controlled by third party companies like Google and Yahoo, as well as millions of individuals. Ads on those websites will be controlled by them as well. Comcast might be able to block websites whose content it disagrees with, but there’s not much they can do to change what content a given website contains.

Couldn’t Comcast replace website ads with ads of their own before they’re delivered to the consumer? They talk about “deep packet inspection” technologies that allow them to monitor and manipulate Internet traffic at the application layer. But while such technology does exist, it’s far too clumsy, brittle, and labor-intensive to do anything like what this paragraph describes. There are lots of ways to evade such technologies, especially if there are billions of dollars in advertising revenues at stake.

More to the point, it’s extremely hard to imagine that Comcast would attempt such a stunt, as there would be a ferocious backlash from consumers, from web site owners, and from Congress. And besides, what presidential candidate or major corporation would buy ads that are placed in such a sleazy manner? There’s a reason you don’t typically get unsolicited spam for Ford trucks–mainstream institutions have reputations to protect.

The author of this article seems to assume that the Internet as we know it will be replaced with a ComcastNet that only has Comcast-approved web sites. But that doesn’t make a lot of sense. Who would pay money for such an Internet? How would they explain to the millions of people who read DailyKos, or use Craig’s List, or post to their LiveJournals, that they’re no longer allowed to access those sites, but that there are comcast-approved websites they can visit instead! The reality is that telecom companies just aren’t that powerful, and consumers just aren’t that docile. Consumers are already well used to having unfettered access to the entire web, and they’re not likely to meekly accept it if that access is restricted.

There are some pretty good arguments in favor of network neutrality regulation, but invoking wildly pessimistic visions of Internet dystopias isn’t among them.

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E-Mail to Expire in the Year 2157?

by on February 3, 2006 · 2 comments

It’s not every day that we witness the death of a great communications technology. But that happened last Friday and nobody seemed to notice. Western Union posted this annoucement on its website a week ago:

“Effective January 27, 2006, Western Union will discontinue all Telegram and Commercial Messaging services. We regret any inconvenience this may cause you, and we thank you for your loyal patronage.”

Some of us were under the impression that the telegram was already dead, but now we know for sure that it is. There was a time, of course, when the telegram was as hot as the Internet and e-mail are today. (Read Tom Standage’s great book “The Victorian Internet” for the complete history).

But the rise of the telephone effectively crushed the hegemony of the telegraph as a communications medium. (Ironically, as I pointed out in my old history of the telecommunications industry, Western Union actually passed up the opportunity to buy the Bell telephone patents for just $100,000 believing that the device was nothing more than a passing novelty! Talk about your missed opportunities.) As Mike Musgrove points out in his obituary for the telegram in today’s Washington Post, “Telegrams peaked in 1929 with 20 million messages sent. Last year, there were 20,000. The final one was sent last Friday.”

Overall, the life of the telegram as communications technology lasted from 1844-2006. That’s 162 years. Not bad. If e-mail lasts that long as a communications technology–and assuming a rough start date of around 1995 (when it really starting going mainstream)–then e-mail will die in the year 2157.

Of course, there are good reasons to believe that e-mail will be replaced by some other form of communications long before that. In light of the staggering pace of technological innovation we are witnessing today, I wouldn’t be shocked to see e-mail’s demise within my own lifetime. Once my grandkids are running around with microchip implants in their heads that allow instant telepathic communications, who needs to type out messages!

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Are Young Libertarians Anti-IP?

by on February 2, 2006

James DeLong laments young libertarians’ anti-IP tendencies, quoting my former colleague Adam Theirer:

Almost every young libertarian I come in contact with these days is equally opposed not just to the sort of new copyright protections that the content providers seek, but even to traditional copyright laws and rules that pre-date the 76 Act. And not all of these people are wacko libertarian-anarchist types. Many respected young libertarian minds are turning against copyright. I don’t believe that the best strategy is to ignore them. You guys should engage them in debate and defend your views before this extreme anti-IP position becomes more mainstream.

Since I might be one of the young libertarians he’s referring to, I thought I’d briefly comment on this. I agree with Adam that young libertarians tend to be more skeptical of intellectual property law than older ones, and I appreciate his urging his colleagues to engage our arguments. However, I respectfully disagree with the contention that most of us are “equally opposed” to all intellectual property laws. To the contrary, most of the young libertarian professionals I know are supporters of intellectual property, but are critical of the way that the powers of the copyright industry have been expanded in recent years. I made such a critique a few months ago.

To make sure this wasn’t just me, I conducted a quick poll on a mailing list I’m on, which is dominated by libertarian professionals under 35. Of the nine who responded, seven identified themselves with this school of thought, whereas only 2 identified themselves as favoring the abolition of intellectual property. (None of them expressed support for the status quo or for further strengthening) I’m not going to claim that my friends are representative of young libertarians generally, but clearly there are a lot of us who aren’t IP anarchists.

So why are we critical of the content industry? DeLong seems to think it’s because of our unsophisticated view of property rights. Apparently, we’re fixated on the notion that property has to be a physical object, and so we can’t wrap our brains around the complexities of intangible property. I’ll just say I don’t think that’s right. I think every one of the people who responded to my little poll would enthusiastically endorse strong protections of other “intangible” rights, such as contract enforcement.

So it doesn’t appaer to me that DeLong took Adam’s suggestion that he engage his critics very seriously. He’s very good at taking potshots at the anti-IP fringe, but I’ve hardly ever seen him seriously engage his mainstream opponents. Their goal isn’t to abolish intellectual property, but to re-assert the principles that grounded America’s intellectual property system for the first 200 years of our nation’s existence.

On the off chance that Mr. DeLong is unfamiliar with this critique, allow me to pose four questions that could serve as a useful starting point for discussion. They’re about my pet issue, the Digital Millenium Copyright Act, which I think is at the center of a lot of copyright-related disputes. They’re questions that, despite the DeLong’s voluminous writings on high-tech copyright in general and the DMCA in particular, I’ve never seen him address directly:

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Is Verizon a network hog?

by on February 2, 2006 · 2 comments

I’m still trying to wrap my head around all the intricacies of the net neutrality debate. The latest twist is a report that Verizon plans to reserve 80% of the capacity of its network for its video service. This has prompted some to argue that Verizon is skewing the Net.

Leading Net companies say that Verizon’s actions could keep some rivals off the road. As consumers try to search Google, buy books on Amazon.com, or watch videos on Yahoo!, they’ll all be trying to squeeze into the leftover lanes on Verizon’s network. On Feb. 7 the Net companies plan to take their complaints about Verizon’s plans to the Senate during a hearing on telecom reform. “The Bells have designed a broadband system that squeezes out the public Internet in favor of services or content they want to provide,” says Paul Misener, vice-president for global policy at Amazon.com.

But I don’t see how Google or Amazon have a right to tell Verizon how it should allocate the capacity of its network–and certainly not by running to the Senate. This is a different issue than Verizon trying to charge those companies for access to their customers. It would seem that this is a matter of internal allocation of a company’s resources. If customers aren’t happy with the speeds they’re getting because 80% of the bandwidth is tied up in video, they can always switch providers–to the cable companies and hopefully to wireless providers some day. That’s why we need deregulation to ensure competition, not regulation of what firms can do with their own pipes.

P.S. Does anyone know what FCC filing the report is referring to?

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