As expected, last night’s TLF happy hour was a tremendous success. Dubbed Alcohol Liberation Front, it saw the largest convergence of TLF bloggers ever in a single location. Not only that, but the event saw a record number of TLF readers attending to join in convivial, spirited conversation – not to mention a teeming crowd of TLF-oblivious revelers. Needless to say, there was plenty of noise and plenty of jostling to get to the almost-packed bar.
And it’s no wonder. What an opportunity! – to gather and talk about all the stuff that we usually write about!
I, for one, am still dizzy from the excitement generated by the event, or perhaps that’s “queasy.” No matter. I’m looking forward with intense trepidation to the next Alcohol Liberation Front event. Hearty thanks to Tim Lee for organizing and for coming up with the zinger quote of the night: “Another gin and tonic for my analog hole.”
(WTF?)
David Levine writes to tell me about his blog, which is on the same theme as his book: abolishing patents and copyrights. Although I wasn’t persuaded by his talk, I thought it was an interesting and provocative presentation, and I’m looking forward to reading his blog and his book more carefully to consider his arguments in more detail.
Matthew Yglesias weighs in on my recent post concerning Levine’s talk:
Strengthening copyright protections does two things. On the one hand, it increases the incentives for creating new works because it makes it easier to make more money off of them. On the other hand, it increases the costs of creating new works because it makes it harder to pull ideas out of the common culture. Lots of Shakespeare’s plays–The Merchant of Venice comes to mind–were pretty clearly stolen in some sense from other works floating around at the time; he stole the plots and made the writing better. Lots of Disney’s movies (and, no doubt, other studios’ movies as well) are based on traditional folk stories or other things that were for whatever reason in the public domain. Making the public domain smaller by increasing copyright terms or the scope of what’s considered infringement makes it harder to create new works.
What’s more, there’s an assymetry at play here–stronger copyright increases the incentive to create commercial works but increases the costs of creating commercial and non-commercial works alike. Consequently, when copyright is weakened or (as has invariably been the case) strengthened, you shift the balance of power between commercial and non-commercial uses. There are some real tradeoffs here and a real need for balance.
I don’t think we really disagree here. The key phrase in my original post was “well-designed.” Our current copyright system isn’t especially well designed. Most obviously, copyright terms are far too long. The courts also do a poor job of protecting fair use–especially in audio and video markets, where it’s been all but obliterated.
So I’m certainly not making an argument for further strengthening the copyright system. I agree with Matt that copyright law is too broad and ought to be reformed. But that’s not the same as saying that copyright should be abolished, which is what Mr. Levine advocates. If you weaken copyright too much, you undermine the incentive for creativity so much that you would significantly undermine the creation of certain kinds of copyrighted works.
There’s an interesting story on B1 of today’s Wall Street Journal about cellular companies establishing very restrictive standards for wireless media content transmitted over their devices. I have yet to see the final guidelines that the Journal gained access to, but it sounds like Verizon, Cingular, Sprint and others will be imposing some very stringent controls in an attempt to curtail nudity and sexual content, foul language, violent programming and even hate speech.
As I pointed out in my recent PFF study, “Parents Have Many Tools to Combat Objectionable Media Content,” this is just another example of the sort of steps that media providers and distributors are taking to help parents and consumers restrict or curtail objectionable content before they call upon government to do that job for them. Of course, one could argue that the only reason they are taking such steps is to avoid potential government scrutiny in the future. (Then again, the FCC does not currently possess the legal authority to regulate “indecent” or “violent” content on cellular / mobile networks or devices.) Regardless, I think it’s great that companies are establishing some voluntary guidelines and controls.
One thing that is still a bit unclear to me, however, is exactly how cellular carriers plan to police all the media content that will increasingly be flowing over their networks. The Journal article says that carriers are currently relying mostly on ad-hoc phone calls or e-mails to specific media providers to remove or edit certain types of potentially objectionable content. But even if the cellular carriers allocate more resources to such ad-hoc enforcement efforts, it certainly won’t be fool-proof. It will be easier to police content provided by large players (such as MTV or Playboy, for example), but what about all the organic, bottom-up, user-generated content?
This is the problem News Corp. has been facing in recent months with MySpace.com. Millions of average people (mostly teenagers) are posting countless bits of personal material on their sites. Some of it can get a little raunchy or offensive. That’s created a significant challenge for MySpace, but they are trying to do their best to keep up with it.
Cellular carriers will face that same challenge in coming years as more and more media goes mobile. It will be interesting to see how they deal with it and what the response of the legislative / regulatory community will be to these self-regulatory efforts. Stay tuned; another major First Amendment battle could be developing over that tiny TV screen in your pocket !
Technology Daily (subscription) reports that several conservative groups blasted Senate leaders Tuesday for not acting on legislation to increase broadcast indecency fines, and “failing to deliver an issue to values-oriented Republican voters”. Said Amanda Banks of Focus on the Family: “[t]here is no reason why in 2006, just months before this Congress is going to be out of session, it has not passed the Senate and moved on to the [president’s] signature.”
But Focus’s focus is wrong here. Increased fines on broadcasters would do little to help parents protect their children from programming they see as offensive. Broadcast TV, remember, is only a small part of TV viewing–most is now on cable channels not under the FCC’s authority. And that authority, for good constitutional and policy reasons, is unlikely to be extended. If anything, given the legal challenges recently filed against the FCC’s latest round of indecency fines, that authority will be pared back.
Rather than the dead-end of goverment content regulation, the real goal should be to increase the ability of consumers to themselves control the content of what appears on their TVs. Congress this week took a giant step toward that goal yesterday–as the House Commerce Committee approved legislation to speed the launch of new, Internet-based, video TV services developed by Verizon, AT&T and others. Not only will these new offerings provide welcome new choices for consumers, but the technologies they use promise to make it easier for individual consumers to get individualized TV programming packages.
Such service would be a boon to beleagured parents. Rather than criticize Congress for not increasing the FCC’s power, conservatives should be cheering on this very real step toward consumer choice.
It’s day 4 of the Microsoft European hearing and today the Judges asked some really great questions about interoperability. Judge Cooke, whose Irish accent comes and goes, really cut through the blather on both sides of the argument and got to the core of the issue. The basic issue is that in 2000, Microsoft figured out how to create a distributed computing cluster that would work really well with thousands of computers (in the Court proceedings everyone is calling this the “blue bubble” because it is a cluster of computers that can only talk with other computers using “identical logic” and Microsoft outlined it in a graph colored blue). This is in contrast to other vendors like Sun Microsystems that can only offer a solution using four computers and Novell that can only do it with 150. Microsoft’s competitors would really like to be able to see and copy Microsoft’s patented invention, as they have failed to find the secrets through reverse engineering. The European Commission in 2004 was convinced that servers made by companies such as Sun Microsystems and IBM have trouble “interoperating” with Microsoft servers because Microsoft is not sharing the essential language needed to talk between computers. This sounds like a convincing argument, but it’s not an accurate representation of the issue and completely ignores third-party products that already exist to facilitate server discussion. Indeed, as the Court heard, most of the complaining companies brag in marketing materials that their servers can interoperate with Microsoft.
So, what is really going on? As Microsoft’s attorneys and other American representatives told the Court, the intellectual property that Microsoft’s rivals are trying to get their hands on does not act like a language, but rather like DNA. That would give Microsoft’s rivals the ability, not to talk with them, but to clone them–a dangerous development that would be costly in terms of profits for Microsoft and for the future of any company that relies on intellectual property for its livelihood.
The first panel of yesterday’s Cato conference focused on Against Intellectual Monopoly, a treatise against patent and copyright law. One of the authors, David LeVine, faced off against James DeLong of the Progress and Freedom Foundation, with Cato’s Jim Harper providing some theoretical background at the outset.
I wanted to be convinced by Mr. LeVine’s argument. The world would be a much simpler place if we could just forget about all this intellectual property stuff. IP litigation consumes a lot of resources and the IP system is prone to rent-seeking legislation like the DMCA. Unfortunately, he just didn’t make a very convincing case. He did point out certain classes of content that could be produced for free; open source software is an obvious example. But it’s hardly groundbreaking to point out that some creative works could be produced without the IP system. The central question is whether, on the margin, intellectual property increases or decreases incentives for the production of creative works.
I just didn’t think LeVine did a very good job of engaging on this question. As DeLong pointed out, there are some classes of creative works, such as big-budget Hollywood movies and pharmaceuticals, which it seems exceedingly unlikely would be produced without an intellectual property system. When asked about the King Kong example, LeVine seemed to me to dodge the question, giving examples that really aren’t analogous.
Moreover, LeVine seemed not to grasp the point that copyright and copyleft products can perfectly well co-exist side-by-side. Bad legislation like the DMCA aside, there’s no reason a well-designed copyright system should in any way impede the creation and distribution of non-commercial creative works. True, I can’t take the source code to Microsoft Windows as the basis for my next open source operating system, but in an non-IP world Microsoft Windows likely wouldn’t exist, so that doesn’t seem like a great loss.
If non-commercial, decentralized production methods really are superior, they should be able to prove their worth without changes to the copyright system. So I’m perfectly willing to take a wait-and-see attitude. If, 20 years from now, we’re all running Linux, going to movies produced by volunteers in their free time, and taking drugs produced at low cost by Universities, then we can by all means abolish intellectual property then. But right now, intellectual property seems to be doing a pretty good job of stimulating the production of creative works, and I’m not inclined to upset the apple cart without a good reason.
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.
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.
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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.