This is a quick reminder about two upcoming events:
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.
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.
Today’s hearing at the European Court of First Instance (CFI) focused on the Windows Media Player. Below are some key ideas that came up during the arguments.
On RealPlayer:
Some groups like ECIS–the European Committee for Interoperable Systems–attempted to argue that RealPlayer is dead. Their press release said this:
“Just as [Microsoft’s] strategy eliminated the Netscape Browser and now Real Player, unless stopped it will do the same to other technologies whenever MSFT deems them to be strategic to their business interests.”
Last I looked, RealPlayer was alive and well (and fighting with Apple over its proprietary music technology). I personally stopped using RealPlayer a while ago because I was tired of the spyware-like pop ups that Real delivered to my computer.
On browsers:
The EC attorney said that Microsoft’s browser has become stagnant because “it has a monopoly.” That’s got to be the loopiest statement I’ve heard in a while. Apparently the EC attorney is not aware of Safari, Opera, Flock, or my personal favorite, Mozilla (born from the original Netscape).
On the popularity of Windows designed by Eurocrats:
As of today, no PC manufacturer has shipped a single computer installed with Windows XPN (the n means no Windows media player). Translation: no one wants bureaucrats to design software for them.
On multiple choices for media players:
The EC seems to be assuming that consumers will only ever want to use one media player and that content providers will only want to offer their products in one format. This doesn’t make sense, at least at this point in the market’s evolution. Each media player has its merits, which is why many of us use different ones at different times. And, thanks to a nice presentation by Jonathan Zuck of the Association for Competitive Technology, the Court and all its observers got to see how fast, easy, and cheap it is for a content provider to offer up their wares in multiple formats at once (i.e, when you go to a site and it asks you if you want to use RealPlayer, Quick Time, Windows Media, etc). There are affordable translation programs like “ProCoder” or the one built into Apple’s “Final Cut Pro.” Jonathan’s demonstration showed that it took 3 steps and about 10 minutes to do the translation–a no-brainer for any content company. “It’s as simple as 1-2-3,” he said. But when the EC issued its Microsoft decision in 2004, it didn’t consider the costs or the ease of translation. It just assumed that there would be costs (the translation), but ignored the benefits (greater choice for consumers and hence the ability for content providers to grow their market and revenues).
The upshot:
It was an interesting day with both sides presenting their cases. Tomorrow, the judges start to ask questions and I’m sure those British attorneys wearing the judicial wigs will get extra hot heads. I’d better get to the gift shop and buy my Internet access cards before they sell out and I’m forced to send smoke signals.
Also, if you’re interested in listening to Podcasts of the event, Americans for Technology Leadership’s (ATL) Jim Prendergast has posted a few on ATL’s site.
A couple of weeks ago, Patrick Ross mentioned a talk given in Brazil in defense of software patents:
GWU Law Professor John Duffy defended software patents. A good example of a software patent, he said, is Google’s first patent. It patents their search approach, which starts with a basic search, then involves a search within the search results based on popularity. That innovation has led the company to a market cap of $123 billion, but couldn’t be protected by copyright because the method could be written in a thousand different ways.
Intrigued, I wrote him asking for details. He kindly pointed me to Duffy’s PowerPoint slides.
I’m not impressed. Here, literally, is the slide making the argument about Google:
Patents can make you rich and famous.
Example: Google = $123 billion
Google is built on a a few key software patents.
Now, it’s probably not fair to judge a presentation from its PowerPoint slides. I’m sure Duffy’s presentation was far more nuanced than this simplistic rendering suggests. Still, even taking that into account, this is pretty weak sauce. You can’t just attribute Google’s market cap to its patent portfolio, as though that settles the matter. Duffy’s slide presents no evidence whatsoever that Google’s patent was key to its success. It’s the crudest kind of post hoc ergo proctor hoc fallacy.
It’s hard to see how Google’s story would have been any different in a world without software patents. The slides offer no evidence that any companies have actually been deterred by the existence of Google’s patent from producing a Google knock-off. If you examine the patent in question, it’s far too general to be of much use to someone wanting to do so. What makes Google so great isn’t the general concept of its search, but its superb implementation. They were the first company to take the general concept of treating links as votes and implement it in a way that could scale to billions of pages.
But of course, implementation details are protected by copyright. Which means that in a world without software patents, Google would have gotten along just fine.
Moreover, even if we assume that Google’s market cap is partly attributable to its patents (which I think is unlikely) that doesn’t prove that it’s a good thing. There are all sorts of government programs that make corporations wealthy. Ethanol subsidies have been good for ADM. Defense spending has been good for Northrop-Gruman. New York taxi medallions have been good for those fortunate enough to have one. The policy question isn’t whether these programs serve the companies that benefit from them, but whether they promote innovation and economic growth. I can’t see any reason to think that the availability of software patents makes future Googles more likely. To the contrary, the primary effect of software patents appears to be a kind of rent-seeking, wherein software trolls obtain software patents to extort legitimate companies, and legitimate companies are forced to acquire software patents (and retain lawyers) to defend themselves.
There might be an example of a legitimate software patent out there, but this sure isn’t it.
I’m in Luxembourg today to watch the Microsoft hearing before the Court of First Instance. Two years ago, the European Commission found Microsoft guilty of abusing its dominant market position and imposed a record €497m ($613m) fine and ordered it to disclose key elements of its IP and offer a striped down version of Windows. The version of Windows that Microsoft was forced to put on the market hasn’t been popular and it will be interesting to see how that plays out this week. While this story is happening in Europe, it has broad implications for all American companies.
This is crossposted from www.soniaarrison.com where I am posting a bunch of comments from the hearings.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.