April 2006

Speaking of Cynical…

by on April 26, 2006

Here’s Patrick Ross’s take on today’s Cato conference:

I wonder how some of the Cato fellows and alums in the audience felt, then, when twice Cato was welcomed into the fold as a copyfighter. Rep. Zoe Lofgren and the CEA’s Gary Shapiro both did so. Lofgren said she didn’t recall ever stepping foot into Cato before, but “this might be one area where Cato and I form a working partnership.” Shapiro urged Cato to take the issue to the Hill. What Lofgren and Shapiro are referring to is a recent paper published by Cato that calls for, essentially, a repeal of the DMCA. The paper takes a very cynical view toward intellectual property rights and creators.

To be honest, I’m not sure what he’s talking about in that last sentence. At no point in my paper do I write anything that could be plausibly described as a “cynical view toward intellectual property rights.” As I’ve tried over and over to emphasize, my concern is with the ways the DMCA has interfered with the marketplace in realms outside the traditional scope of copyright, such as preventing interoperability and stifling competition. I can easily imagine Mr. Ross having legitimate policy disagreements with my analysis, or arguing that the benefits of DRM technology are worth these downsides. I think that would be an interesting and productive debate. But for some reason, he doesn’t seem very interested in it.

Instead, Ross seems determined to knock down a straw man of my views. When I argue that the DMCA is a poor method of protecting copyrights, he describes that as being “cynical” about intellectual property. As in his epic three part critique to my paper last month, Mr. Ross’s primary mode of argument seems to be to misrepresent my arguments and positions.

I should mention he’s not the only one who responds to criticism of the DMCA by refuting straw men. On my own panel today, Emory Smith of the Business Software Alliance seemed not to have listened to the others on our panel, as he spent virtually his entire speech refuting the position that piracy was hunky-dory– a position that no one on the panel had taken. The defenders of the DMCA seem determined to avoid having a serious debate about the law’s effectiveness or unintended consequences. It’s so much easier to simply paint those who disagree with them as “copyfighters,” “intellectual property skeptics,” or IP anarchists who want to “abolish IP rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government.”

I think that “cynical” is a reasonable way of describing this rhetorical strategy. I can only imagine that they’ve adopted it because they don’t have good responses to the actual arguments against the DMCA. For example, despite several requests, Mr. Ross has yet to substantiate his claim that I made a mistake when I wrote that “the DVD CCA never approved any software DVD players for Linux [and] that the DVD CCA must approve DVD software players.” I think documenting that accusation might be a good starting point for a debate based on facts and arguments rather than name-calling.

The New Hampshire Senate Committee on Pubic and Municipal Affairs unanimously approved legislation to refuse the state’s participation in the REAL ID Act today. The bill passed the House with a large favorable vote and is scheduled for a full Senate vote within two weeks.

Both the Manchester Union Leader and the Concord Monitor editorialized in favor of the bill, which would prevent New Hampshire from participating in a national ID program. ADDED: The Nashua Telegraph also favors the bill. ADDED: Video of a rally in favor of the bill to kill REAL ID in New Hampshire.

This is a very exciting opportunity for a small state to topple a big-government program – and, oh, might I add, protect all of our privacy and liberties by forcing a debate on national ID in the U.S. Congress. More to come on this in the future and in my forthcoming book, Identity Crisis: How Identification is Overused and Misunderstood.

Yesterday, the CFI wrapped up its examination of the EC’s order to force Microsoft to remove 200 files from Windows to create the wildly unpopular Windows XPN. Now that the Court is done looking at the EC’s attempt to design software code, today everyone is focused on the issue of Microsoft’s intellectual property. Regulators have accused Microsoft of failing to provide rivals with enough information to develop software that could run as smoothly as its own on the Windows operating system. Microsoft countered that claim this morning by showing examples of client-server and server-server interoperability. Given how the different systems can talk with one another using translation-like programs, it seems rather draconian for the EC to force MS to give away their IP to rivals. Apple computer must be watching this with great interest given that they are facing similar pressure with iTunes. This case is not just about Microsoft, but about what regulators can do to any software company when rivals complain.

This is crossposted from www.soniaarrison.com.

This is a quick reminder about two upcoming events:

  • Tomorrow morning is Cato’s conference “Copyright Controversies: Freedom, Property, Content Creation, and the DMCA,” in which some of your favorite TLF bloggers–as well as yours truly–will be participating. If you’re in DC, you should come and ask me softball questions. If you’re outside the DC area, you can visit Cato’s home page, which should have a link for a live video feed.
  • On Thursday evening, TLF will be joining forces to do battle with a pitcher of beer. It will be from 5-7 PM at the Gordon Biersch Brewery in Chinatown.

  • MoveOn.org. The Consumer Federation of America. Consumers Union. The list of members of the new SavetheInternet.com Coalition are a mostly unsurprising bunch. Mostly left-of-center, many of whom have never met a regulation they didn’t like. But then comes the Gun Owners of America. Whoa. As Cynthia Brumfield over at IPDemocracy put it “huh? how’d they get in there?”

    Last time I checked, the second Amendment referred to a “well-regulated Militia” being important. I didn’t catch the part about a regulated Internet. Yet, there was GOA, pushing for wide-ranging government controls on how network providers run their networks. Craig Fields of the group explained their position this way:

    “Gun Owners of America opposes any attempt to limit or curtail political speech. Without statutory network neutrality, there is nothing to prevent big telecom companies from injecting political bias into the very skeleton of modern communications. If the telecoms believe they can frame opposition to their power grab as a liberal or anti-free-market attack, they are sadly mistaken.”

    It’s hard to know where to begin with this. First, no one is talking about limiting political speech, and if Verizon or AT&T has an anti-gun bias, its news to me. (AT&T is based in Texas, for gods sake.) In any case, does anyone think that the way to protect political speech is to give the FCC more power? Someone should give these people a lesson in FCC history.

    But the real eycatcher here is the assertion that this isn’t a free-market attack. Whether you support net neutrality regulations or not, you must acknowledge that they are regulations. If you think they are necessary, that’s one thing, but don’t pretend this is a “free market” initiative. It’s anti-market, no matter how many lofty references to speech you make. Fields himself gave away the game when said, regarding how the Internet market works, “even if you leave political bias out of it, simple greed takes over.” So much for the marketplace.

    In other words, GOA is saying that the same government that can’t be trusted to regulate our guns somehow can be trusted to regulate the Internet. Leave our handguns alone, but go ahead and take control of the greatest engine for innovation in history.

    A surpising position indeed.

    Ignorance is Strength

    by on April 25, 2006 · 10 comments

    Apropos Adam’s post about network neutrality and the first amendment, one of the cleverest things about the pro-network-neutrality campaign is the way they’ve been able to subtly portray themselves as defending the status quo against greedy telecom companies. We’re told that network neutrality is “the First Amendment of the Internet,” but “Internet provides like AT&T and Verizon are spending millions of dollars lobbying Congress to gut net neutrality.”

    The fundamental problem that net neutrality advocates have is that theirs is a solution in search of a problem. Check out their list of “numerous examples” of net neutrality abuse:

  • In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.
  • In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a labor dispute.
  • Shaw, a big Canadian cable TV company, is charging an extra $10 a month to subscribers who want to use a competing Internet telephone service.
  • In April, Time Warner’s AOL blocked all emails that mentioned www.dearaol.com–an advocacy campaign opposing the company’s pay-to-send e-mail scheme.
  • For those keeping score at home, that’s two incidents in Canada (which, last I checked, is not within Congress’s jurisdiction) and a third that was most likely an honest mistake. So their “numerous examples” of net neutrality abuse in the US amount to one alleged incident by an ISP in North Carolina that no one has ever heard of. That hardly sounds like a looming crisis.

    Which creates a problem, because they know that without a sense of urgency, Congress will (justifiably) take a wait-and-see attitude. So to generate that sense of urgency, they’ve taken a page out of Mr. Orwell’s book: those of us who think Congress should leave well enough alone are trying to “get rid of net neutrality.” Telecom companies who don’t want the FCC telling them how to run their networks are trying to get “special rules written in their favor.” On the other hand, those who advocate intrusive new govenment regulations are just trying to “preserve the freedoms we currently enjoy on the Internet.”

    But war is not peace and freedom is not slavery. It’s the “save the Internet” coalition, not its opponents, who are seeking to fundamentally change the Internet by giving new powers to government regulators. The looming threat here isn’t from corporate control (which Congress can step in at any time to curtail) but from government control (which, once established, is unlikely to ever be repealed). Maybe it’s a good idea to expand governmental regulation of the Internet, but if so, the supporters of doing so should call a spade a spade.

    A new pro-Net neutrality coalition has formed called the “Save the Internet Coalition.”

    Hey, who can be against that? Well, I can.

    You see, this coalition’s idea of “saving the Internet” is premised on regulators doing the saving. The coalition proclaims that “Congress must include meaningful and enforceable network neutrality requirements” in whatever communications reform legislation it passes this session “to ensure that the Internet remains open to innovation and progress.”

    Oh, I get it… Let’s call in our benevolent-minded regulators to oversee the daily workings of something as complicated as Internet network management. Brilliant !!

    Haven’t we learned anything from seven decades of communications regulation? Empowering bureaucrats to micro-manage the operation of broadband networks and Internet activities isn’t going to lead to communications nirvana; it’s going to lead to just another regulatory hell. Supporters of Net neutrality mandates are essentially saying we need more government regulation in order to be free. It’s the beginning of another sad chapter in the “burn the village in order to save it” story of modern communications regulation.

    And in what I regard as an absolutely despicable contortion of the true meaning of the First Amendment, the Coalition’s “statement of principles” on its website states that: “Network neutrality is the Internet’s First Amendment. Without it, the Internet is at risk of losing the openness and accessibility that has revolutionized democratic participation, economic innovation and free speech.”

    Please! How dare you employ the First Amendment in defense of your Big Government plan for Internet control. In case the members of the “Strangle the Internet”… er, uh… “Save the Internet Coalition” have forgotten, the First Amendment could not be any more clear about the role it envisions for government when it says: “CONGRESS SHALL MAKE NO LAW…”!

    We used to talk about “Hands Off the Internet.” But groups like this are leading us down the path to “Hands ALL OVER the Internet.” To use the First Amendment in service of this regulatory agenda is outrageous.

    If the folks in this coalition want to take a stand in favor of the REAL First Amendment, perhaps they can come join me in my daily fight against the FCC on the speech control front. Those same benevolent bureaucrats that the “Save the Internet” coalition wants to empower to regulate Net have been very busy lately regulating speech in the broadcast sector.

    You might say there’s no connection between these two issues. Nonsense. We gave the regulators an inch on the broadcast front and they took a mile. Once we empowered them to regulate broadcast infrastructure, the regulation of the speech delivered via broadcast platforms followed. It’s an example of what Vanderbilt law professor Christopher Yoo has labeled “architectural censorship.” Simply stated, if government can regulate the soapbox, it can regulate the speech delivered from that soapbox as well. Do you really think things will be different once we invite the bureaucrats in to regulate the Internet?

    I say if we’re going to “save the Internet,” let’s start by saving it from silly ideas like Net neutrality regulation.

    Next Tuesday, Nobel Laureate and George Mason Professor Vernon Smith and Prof. David Porter, both internationally renowned experts on the structure of auctions, will be speaking about their experiences helping craft the FCC wireless auctions. They will asses the auction system and discuss how auctions have affected the allocation of radio spectrum. Event deets: Tuesday, May 2, 4 p.m. (reception following) – GMU School of Law Room 120 – Admission is free, but seating is limited. RSVP to Masha Khazan, mkhazan@gmu.edu.

    The Heartland Institute’s IT&T News has published my latest article on the DMCA:

    Intel, which manufactured the processors at the heart of the first PCs, encountered the same kind of unauthorized competition in its platform in the early 1990s. Several companies, including Advanced Micro Devices, began producing chips that could run software designed for Intel chips. The result has been rapid innovation and constantly falling prices in the market for processors.

    In short, intra-platform competition among the likes of Intel and AMD has contributed even more to innovation in the PC industry than inter-platform competition between Windows and Macintosh. The law ought not to stand in the way of analogous competition in the market for digital media devices. An entrepreneur who wants to compete with the iPod by building an MP3 player that works with the iTunes Music Store should not be prevented from doing so by copyright law. Yet that is precisely what the DMCA does.

    MikeT has a great post comparing the relative performance of Sun’s Java platform and Microsoft’s .NET platform:

    Microsoft has refused to open up the .NET platform to the same degree as Sun has, and while there is freedom to implement parts of the base specifications, the legal status of any alternative implementation is in limbo because Microsoft won’t commit to the same open licensing of its patents for .NET that Sun has for Java. There is no “.NET Community Process” that can provide the same sort of assurance that the Java Community Process can provide. One of the benefits of the JCP has been that it has provided a few major corporations with sufficient incentive to write their own Java implementations that a credible open source implementation was not even started until recently whereas no on has hitherto dared to develop a commercial .NET reimplementation.

    The very existance of these implementations is important because they provide the developers and users of Java and .NET with the assurance that they are not betting everything on just one vendor. Advocates of software patents almost always underestimate the importance of such multiple, non-patent-encumbered implementations to the success of a platform. Developing Java or .NET may be expensive, but for the actual developers and users who will make use of them, there is often even more to lose by tying an entire infrastructure to a technology that can only be provided by one vendor.

    Lastly, consider this, you skeptics out there. Where would the market for Java application servers be today were it not for Apache Tomcat and JBoss providing high quality open source alternatives to the extremely expensive proprietary servers? This alone is a very good reason why software patents ought to go. Had Sun left other companies and open source groups in limbo on what they would do with their patents, few companies would have invested into the development of Java application servers. It was Sun’s decision to not use their patents except as a mechanism to control the purity of the implementation of the Java platform that really got things going. Since Microsoft has not yet committed to allowing others to develop .NET runtimes that are fully compatible with theirs without licensing technology from them, the market for .NET products has been primarily limited to those who wanted to replace existing Microsoft-specific code rather than build a totally new market the way that Java has started.

    I can think of a few factors that might help explain Java’s lead (perhaps most notably, Sun had about a 4-year head start) but I think the general point is a sound one. In fact, this is a point I plan to stress at Wednesday’s Cato conference: just as planned economies don’t work as well as decentralized, market-oriented ones, so too do technological platforms controlled by one vendor tend not to do as well as platforms in which anyone is free to participate without seeking permission of a centralized authority. What software patents and the DMCA do, in effect, is encourage the technological equivalent of central planning. Central planning doesn’t work for national economies, and it doesn’t work for software platforms.