Today, PFF released a short new paper in which I propose a voluntary “online code of conduct” for Internet operators to help us head-off further regulation of online speech and expression. With online speech under intense attack in Washington today, I believe it is essential that industry take a bold step to preemptively address the concerns that Congress wants to handle through new legislation and regulation.
The paper can be found online here and I have attached the text of the entire essay down below.
I look forward to comments and criticisms.
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I heard the rumors over the weekend and hoped that they were not true. But they were. “E3” the video game industry’s amazing annual trade show, is going to be scaled back starting next year. The big, beautiful, booming spectacle of hundreds of gaming companies coming together to show off their amazing new games, platforms and other inventions… is no more. It will be replaced by a smaller show at a smaller location with a smaller crowd.
As a gaming fanatic, it is sad news to be sure. I may be a 37-year-old father of two, but when I was walking the aisles of the “E3” show this May, it was a non-stop, “kid-in-the-world’s-greatest-(eye & ear)-candy-store” moment for me. (My complete review of this year’s show can be found here.
But, after the news set in–and after I had time to kill the pain by getting on XBOX Live and kicking a good friend’s butt in a heated match of “NCAA Football 2007”!–I started thinking more rationally about the economics of trade shows. Specifically, why do industries host trade shows at all? Is it really worth it for them?
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Prof. Picker has a post analyzing the copyright issues involved in last year’s BNetD case. In a nutshell, Blizzard makes popular games like Warcraft, Starcraft, and Diablo. They have an online matchmaking service called Battle.net for those games. One of the benefits of Battle.net (from Blizzard’s perspective) is that it checks your CD key and verifies that it’s (1) legitimate and (2) not already in use on Battle.net. This prevents someone from giving a single copy of the CD to 7 friends and then having an 8-way game on Battle.net.
But along comes the BNetD team, which creates server software that mimicks the functionality of Battle.net. BNetD fails to perform the CD key check that Battle.net performs, meaning that those without valid CD keys and those sharing CD keys can log on to a BNetD server. Blizzard sued the creators of the game, arguing that the program was an illegal circumvention device under the DMCA, as well as a violation of the software’s license agreement. Last year, Blizzard prevailed before the Eighth Circuit.
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I’m back from my every-few-years journey to Nelson, Canada, my hometown. Back to 1970’s levels of technology, too–not that the town isn’t wired, it is, and wirelessed, too, though coverage in the mountains is spotty; I understand there are now people from Vancouver settling there and telecommuting. But my mother’s house has neither computer, nor any kind of Net access, nor a touchtone phone (yes, the phone has an actual dial), no hair dryer, no clothes dryer, no dishwasher, no microwave, and no CD or DVD player, just an old record player and a radio. She does have cable tv, but this is in the last 10 years… before that, no television at all. No car. She likes it this way.
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This is the most embarrassingly clueless critique of network neutrality regulations I’ve seen in months. Music lawyer Chris Castle explains that the real reason that copyleftists like Larry Lessig are pushing network neutrality regulations is to ensure that ISPs don’t discriminate against peer-to-peer file-sharing programs. In addition to being riddled with technical errors (A VPN is not faster than an ordinary Internet connection, and TCP/IP packets aren’t marked with “DNS addresses”), his argument doesn’t even make sense:
The fundamental reason that massive file bartering can continue is that it doesn’t cost users anything more to use their high speed Internet accounts to send an email to their granddaughter as it does their granddaughter to illegally download 5 gigabytes a day of copyrighted materials.
One can easily understand why the Lessig/Fisher cabal supports “net neutrality” given their continued support of massive copyright infringement through “nodding and winking” litigation. However, it is easy to see how Adam Smith’s Invisible Hand could be used to make free riders pay for their use of the Internet for illegal purposes.
Many BitTorrent and p2p connections are excruciatingly slow as it is. Imagine if end users of these products found themselves dumped to the end of the line unless they wanted to pay for higher speed connections.
As far as I know, no network neutrality proposals to date would prohibit bandwidth metering. And they certainly don’t prohibit charging extra for higher-speed connections. I suppose that neutrality regultions could prevent ISPs from singling out P2P packets specifically for discrimination, but it’s not clear why ISPs would want to do that. If P2P applications use more bandwidth than other applications, then charging high-traffic users more would discourage P2P use without running afoul of anti-discrimination rules. And if other applications are equally bandwidth hogs, presumably ISPs would be interested in controlling those too.
Castle also has a weird, sneering attitude toward encryption. Apparently the only reason a user would want to encrypt his traffic is to hide illegal file sharing. It’s not like users ever transmit confidential financial or medical information over the Internet.
I hope Mr. Castle’s understanding of the law is better than his understanding of the Internet.
Incidentally, Specter’s op-ed demonstrates a shocking level of deference to presidential authority that strikes me as wholly inconsistent with our constitutional tradition:
The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president’s contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval. The president, however, did personally commit to submitting this program for court review should the bill pass. Even without a legal mandate, his sending this program to the FISC would be a powerful precedent to be considered by future presidents.
President Bush’s record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush’s personal commitment to submit his program to FISC is therefore a major breakthrough.
Specter seems to consider it a great favor for the president to permit Congress and the courts to scrutinize his actions. “Weakening the presidency institutionally” is the whole point of the Fourth Amendment. We don’t want a president so “strong” that he gets to invade the privacy of Americans without first submitting to court scrutiny.
That last sentence gets the situation precisely backwards: the president is offering to submit his program to FISC only after Congress concedes that doing so is a matter of presidential discretion. The effect of that would be to ratify the administration’s expansive view of presidential power. Such a concession would weaken Congress and the courts the next time an illegal surveillance program is discovered. And it would further erode the principle that the executive branch needs to get permission from Congress and the courts before it conducts a search, not do as it pleases and then browbeat Congress into ratifying its actions after the fact.
The Washington Post has a good editorial on Sen. Specter’s proposal (which he defended here) that would effectively legalize the NSA spying program and others like it:
Under the Supreme Court’s decades-old understanding, presidential power is at its lowest ebb when the president is acting contrary to the will of Congress, and at its zenith when he is using his own powers in concert with legislative authorization. Right now, to conduct warrantless surveillance domestically Mr. Bush must act at the very least in sharp tension with FISA. Under Mr. Specter’s bill, however, the legislature would be explicitly acknowledging an alternative source of authority for snooping. It would thereby legitimize not only whatever the NSA may now be doing but lots of other surveillance it might dream up.
The bill would also allow–but not require–the administration to seek warrants for entire surveillance programs, based on the flimsiest evidence against a small subset of the population that would be subject to the surveillance. The result is that consistent with the bill, the administration could either ask or not ask judicial permission to monitor individuals or large groups of people, based on evidence or no evidence. Or it could simply act outside the law entirely.
An optional warrant requirement is a contradiction in terms. If a president is willing to flout the clear warrant requirements of FISA, what reason is there to think he’d pay any attention at all to a warrant requirement that’s so riddled with loopholes?
Hat tip: Derek
There are some interesting comments that you might have missed in response to James Gattuso’s post last week about VoIP quality and network neutrality. Mike Masnick takes him to task for reading more into the Brix report than is merited.
Brix CTO Kaynam Hedayat notes that his company doesn’t take a position on neutrality regualtions, but he added these clarifications:
– Based on comments from the testyourvoip user community more than half the tests were run for pre-qualification purposes (prior to signing up for VoIP). In those cases the users did not know if they had problems or not prior to running the tests.
– Close to one million tests were conducted for this study.
– The types of impairments and degradation factors that we analyzed point to network congestion. We are further analyzing the data to understand the location of congestion (core, last mile, etc.).
– Via the testyourvoip portal we measured and continue to measure “end-to-end” VoIP quality on the internet.
– The tests are conducted between the user’s desktop to one of seven locations across the globe as selected by the user. The seven locations are connected to the internet via high BW connections without any impairments (they are monitored).
Cog linked to this Ed Felten post questioning whether QoS was a good argument for neutrality regulation. Felten concludes that it’s not–that in many cases simply throwing more bandwidth at the problem is a better solution. For what it’s worth, I find Cog and Felten’s position pretty persuasive. Guaranteeing QoS is a difficult engineering problem that’s likely to require rolling out a lot of new and expensive networking hardware across the network, if it can be made to work at all. Simply building out more capacity is likely to be a more cost-effective option, and it has the salutary side effect of increasing peak bandwidth in addition.
On the other hand, Felten, Cog, and I could be wrong. It may be that QoS can be deployed in a cost-effective manner, and that non-QoS network management techniques simply won’t give us the quality of service we need for high-bandwidth, interactive applications. Which is why we should leave network owners with some freedom to experiment. No one has a monopoly of wisdom on network design, and if anyone did, it certainly wouldn’t be Congress or the FCC!
The European Commission has taken a break from trying to re-design Microsoft’s software just long enough to get excited about DVDs. According to this report, “European Commission antitrust officials are probing the licensing strategies of two rival new generation DVD developers, HD DVD and Blu-ray Disc.” Given that competition is fierce among rival DVD developers, one wonders how exactly Eurocrats think their help is needed in creating competition.
At least it’s not all bad news coming from Europe. A small ray of hope for America’s tech industry arrived this week when the French Constitutional Council declared major aspects of France’s iPod law unconstitutional. Apparently, not all property rights have disappeared from the continent.
There’s an interesting discussion going on at Freedom to Tinker about the interaction among the DMCA, DRM, and contract law. After David Robinson painted a stark dichotomy between legal restrictions on the freedom to tinker (such as the DMCA) or legally mandatory tinkering rights, I pointed out a middle ground: that the law should neither restrict the freedom to tinker nor give that freedom special legal status.
Cory Doctorow had a response that I think is worth highlighting:
I think that an important point is often missed in discussions of this sort: that a marketplace works best when both opponents and proponents of business-models engage in discourse and attempt to sway customers towards or away from a market.
So while I favor the abolition of the DMCA and the clarification of copyright law to improve the tinkerer’s lot, I likewise believe that it is useful and good to warn people that in a no-DMCA world, it would *still* be a bad idea to contract out of your freedom to tinker, and to agitate against the contracts under discussion here.
There’s an important distinction between the two positions: On the one hand, I think that the law regarding the DMCA should be changed–this is a political/legal response I want to see from government. On the other hand, I have arguments I’d like to publicize arguing against accepting DRM even in the absence of the DMCA, but those arguments don’t call for a legal or governmental response, they merely seek to change a potential customer’s mind.
Imagine that there was a law against spearmint gum. I might want this law repealed. I might also want to convince you that you should buy spearmint gum and not cinnamon.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.