Adam Mossoff has written an important paper shedding light on the nature and constitutional status of patents:
Mossoff, Adam, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historical Context” . MSU Legal Studies Research Paper No. 03-21
Adam sheds light on what eighteenth and nineteenth century scholars meant by calling patents “privileges.” Lawyers of the day referred to many types of civil rights that helped secured property rights as “privileges.” “Privileges” was a legal term of art for rights that did not arise in a state of nature, but that arose when people joined together in societies under a social contract–civil rights. Referring to such rights as “privileges” was not intended at all to disparage them or disconnect them from property rights (as in the “privileges and immunities” clause). Thus he traces nineteenth century case law that treat patents as a form of property, subject to “trespass” and broadly defended.
Adam’s paper also drew my attention to two other problems, less related to IP, but none-the-less worth mentioning.
1) The sad neglect of legal history in the law schools, and the tendency of the legal system to pick up on and amplify errors in interpreting cases of the past. This has arisen again and again–with privacy law, with the Ninth Amendment, and on and on. In my view this arises originally from the fact that law was not an academic discipline like history. It was a trade. Law professors taught the trade, and did not much try to be “academic.” Objective historical research was not taken seriously, but only as an addendum to advocacy. Today law schools try to be on a intellectual par with graduate schools in philosophy and history and have little interest in trade problems, but objective research is taken no more seriously. If they want to produce scholarship of lasting and real value, they are going to have to up their standards. I should close by saying that there are important exceptions–true legal scholars–but not enough.
2) The second problem is something the tendency of ideological libertarians (including myself) to underestimate the sophistication of natural rights and social contract theory. It is often accepted by libertarians that rights that do not belong in a state of nature are simply problematic. And a good number of libertarians would dismiss such rights as impossible. But that will not do, because then we must dismiss things like the right to vote, the rights of due process, and so on, as impossible, because all these arise not in a state of nature but in civil society. We might well be cautioned about taking discussions of the “state of nature” too literally. Like “perfect competition” or “zero information costs” in economics, it makes a splendid thought experiment. But in reality the evolution of legal systems and societies is vastly more complex.
A longer version of this note is up on IPcentral, for those to whom it looks familiar.
Eliot Van Buskirk grapples with the apparent self-contradiction of open-source DRM:
Another potential objection to Sun’s plan is that it sounds a lot like existing Microsoft or Apple DRM, in which secure content only plays on certified devices. But there’s one major difference in that area: The certification process would be run by a standards body, rather than by individual companies.
I asked Jacobs to explain who would certify the players, and what would block the non-certified players from playing DReaM-protected content. “There will be an independent legal entity whose sole job it would be to take submissions of devices or players and do certification and testing of the device,” he said. He expects that group will be in place by the summer.
Any manufacturer in the world would be able to add support for DReaM files at a negligible expense (remember, this is open source) and submit its device to the standards body for certification, similar to the way CSS worked with DVD players. Players and programs that aren’t certified cannot legally use the DReaM scheme to play protected content.
There seems to be a strange definition of “open source” at work here. In fact, it’s unlikely that any genuinely open source software would be able to receive certification–just as open source software has been unable to get a license from the DVD CCA–because anyone could modify the software post-certification in order to bypass the DRM scheme’s restrictions.
But the more fundamental point is that the openness of the DRM system would be entirely dependent on the nature of the restrictions the “standards body” placed on the functionality of approved devices. (Actually, describing it as a “standards body” in the first place strikes me as an abuse of language–IEEE doesn’t require me to get its certification before I can build devices that implements an IEEE standard) If the “standards body” imposes highly restrictive rules on the design and functionality of compliant devices, it won’t be any different than existing DRM schemes. The DVD CCA and Cable Labs are ostensibly independent certification organizations too. While it’s possible that the DReaM certification organization will allow greater diversity than existing DRM licensing organizations, there don’t appear to be any guarantees to that effect. And given that the DReaM licensing organization will likely be controlled by industry incumbents, it will most likely become a tool for incumbents to exclude competitors and limit functionality, just like existing DRM licensing bodies.
I would love to be proven wrong, but I’m not holding my breath.
I think we have a few geek readers, so I thought I’d take advantage of that to ask: can anyone suggest a good introduction to Python? I’m fluent in Perl and semi-proficient with C and Java, so a book geared toward procedurally-oriented programmers would be ideal. I’m particularly interested in mastering the Lispy aspects of the language, so a book that talks about its functional-programming attributes would be great.
I see that O’Reilly’s Python books have titles that mirror the Canonical O’Reilly Perl books. Are they any good?
It warms my heart to see AT&T playing hardball with local governments that are trying to micromanage the rollout of its next-generation video services:
What’s not to love about a brand-spanking-new fiber deployment (even if it’s only to the node, and not the curb)? Consumers will get higher Internet speeds, better service over new infrastructure, plus more choice when it comes to television. If you’re a local government that is used to revenues from cable franchises, the fact that AT&T is not willing to enter into local franchise agreements to deliver its IPTV service is a serious drawback. The Chicago suburb of Roselle is firing back at AT&T over the issue, passing an ordinance that will require the telecom to halt work on Project Lightspeed for 180 days…
AT&T is responding to Roselle’s action by essentially threatening to take its ball and go home.
“Roselle passed an ordinance and our lawyers are looking at it,” said Mike Tye, AT&T Midwest vice president for legislative affairs. “We’re dismayed that Roselle halted a network upgrade to bring enhanced services to its citizens. But we have finite capital and will allocate it to communities that want us there,” Tye said.
Although statewide franchise reform is certainly a good idea, AT&T may very well have a stronger bargaining position than municipalities even without reform. There are doubtless thousands of Roselle residents who want what AT&T is selling. Roselle’s elected officials might want to keep in mind that AT&T sends a bill every month to the vast majority of Roselle voters. A series of “Dear Customer…” inserts in those bills explaining that their city council is preventing them from getting competitive TV service might change some minds. And if not, I’m sure there are plenty of other municipalities whose elected officials would be happy to have AT&T provide new and better service to their constituents.
The U.S. recently lost a WTO suit brought by Antigua. Basically the U.S. had outlawed overseas internet gambling, but allowed certain types of domestic gambling sites. The WTO sided with Antigua and told the U.S. it had to change its law. Today is the deadline for the U.S. to make that change and it doesn’t seem like it will. For one thing, the U.S. has little incentive. The normal course in this situation is that Antigua would be allowed to place trade sanctions on U.S. imports. But for a country with a population of 70,000, this would hurt them more than it would hurt the U.S. So, the Antiguans are looking for other options. According to the Boston Globe,
Antigua is considering retaliatory moves that could enable the tiny nation to punch above its weight. … the country may refuse to enforce American patents and trademarks. This would make it possible for Antiguan-based companies to produce knock-offs of American intellectual property, like video and music recordings or computer software. Such a tactic would get the attention of major US firms like Microsoft Corp. and entertainment titan Time Warner Inc. It would also put tiny Antigua’s trade war against the United States on front pages around the world.
There’s also an NPR story on the Antiguan affair here. Easier than actually producing physical knock-offs, they could allow online businesses a la Napster, My.MP3.com, or AllOfMP3.com to go up within their borders. I wonder how far this will go. If they just want to get attention and put pressure on the U.S., or if they’ll go further. Also, what will the WTO make of this? Under the Dispute Settlement Understanding, sanctions aren’t the express remedy. The treaty states that if a settlement can’t be reached by the parties, the plaintiff can seek the WTO’s OK “to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.” The TRIPS Accord would be a candidate for suspension. Although it looks like the WTO Dispute Resolution Body has previously demurred on the topic, some have made the case that TRIPS can “serve as an enforcement device for developing countries in the WTO.”
Sun’s DReaM project, billed as an open source DRM format, smells like something that was dreamed up by Sun’s management without sufficient input from its engineers. It seems to me that if we use the term “open” in its ordinary sense–i.e. a publicly available standard that anyone is free to implement–“open DRM” is a contradiction in terms. DRM depends on its implementation details being secret in order to prevent unauthorized parties from accessing the content. My guess is that Sun’s management is on a kick to make all of their products more “open” and figured that if we can have open operating systems and open processors, why not DRM?
This hunch was confirmed by their recently released overview of the project. Consider this passage, for example:
Historically, proprietary end-to-end architectures have relied upon obscurity to avoid being cracked. Such systems are based upon a false foundation of security promises. Such systems have been cracked and will continue to be breached. Additionally, the opaque nature of these systems has led to monolithic system architectures (by nature) that presume delivery by a single vendor, which inherently increases costs through the lack of interoperability and adds difficulty when attempting to substitute one supplier for another.
DReaM promotes the view that open system architectures will present greater opportunities for review and discussion of technology choices so that shortcomings can be better evaluated and corrected (“review & repair” versus “hope & pray”) to provide the greatest protection possible.
This is an argument that you’ll commonly hear in defense of open encryption standards. And in that domain, it’s absolutely correct: today’s best encryption standards rely on only the encryption key being a secret. Everything else about the internal workings of the standard are publicly available. That allows security researchers to examine and correct any flaws discovered in the algorithm. The oldest and most widely-used encryption standards are the most likely to be secure, because they’ve received the most scrutiny, and so the odds of someone finding a flaw in the future are quite small.
Whoever wrote this DReaM overview clearly took the standard argument for open crypto and applied it to DRM. He missed the fact that the problem that DRM is trying to solve is fundamentally different from the problem that traditional crypto is trying to solve.
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My paper entitled Women and the Information Technology Revolution: Getting the Message of Markets has been released by the Independent Women’s Forum. I must confess that during the drafting phase, this paper was designated in my directories by the less dignified “chicktech.” This paper represents my first foray in some years into the strange world of feminist theory, in which technology is too often portrayed as yet another imposition of male culture. This stands in sharp contrast, I should note, to the not-at-all-strange world of feminist practice, in which one considers the situation of actual women in real situations, particularly in other countries. There is a much greater willingness from this perspective to recognize how much technology has done to alleviate misery. But still little appreciation of what markets have done for technology.
Shortly after I submitted this paper for publication, our family acquired a Roomba, one of those robot floor cleaners (I used to describe him as a robot vacuum cleaner, but the iRobot folks were cleverer than that, and avoided bulk by adopting the compact floor sweeper as a model, rather than a massive vacuum cleaner). Had we acquired him before I completed my paper, it would have been full of praise for the industry and enthusiasm with which he cleans our floors. (Yes, it’s a “he,” though we have not named him yet). There is a lot of whirring and twirling. He’s saved us literally hours of time… with three cats and a toddler, our floor accumulates a pretty nasty scum very quickly, and I’ve calculated that an entire day throughout the week was generally spent on sweeping and mopping. I’d like to challenge technology skeptics to acquire a Roomba, and cling to their vision of technology as a treadmill from which there is no escape from drudgery. And we didn’t even get the fancy new model that remembers rooms and calculates the most efficient path and charges itself!
Here is some material generated by PFF scholars:
My short paper “Net Neutrality: Video Dialtone Redux?” A quote:
Right now there are huge opportunities for growth and expansion of broadband networks and services, including content. And problems as well, from spam to capacity limits, from authentication problems to quality of service issues. Hopefully these issues all have technical solutions, but deploying those solutions is going to take some capital. Do we really want to narrow the business models that can be used to raise and recover that capital down to… video dialtone for the Net?
Testimony of Kyle Dixon before the Senate Committee on Commerce, Science and Transportation, February 07, 2006.
Testimony of Randolph May before the House Committee on Energy and Commerce, Subcommittee on Telecommunications and the Internet, March 30, 2006.
“The Economics of Net Neutrality: Why the Physical Layer of the Internet Should Not Be Regulated,” by Christopher S. Yoo, PFF Progress on Point 11.11, July 2004.
See also “Are ‘Dumb Pipe’ Mandates Smart Public Policy? Vertical Integration, Net Neutrality, and the Network Layers Model,” by Adam Thierer, Journal of Telecommunications & High-Technology Law, Vol. 3, Issue 2, 2004.
More links below:
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The New York Times has the latest evidence that Hollywood is clueless when it comes to selling its products on the Internet. Hollywood has finally gotten around to offering users the opportunity to purchase and download movies online:
New movies will cost about $20 to $30 to download; older titles will cost as little as $10. The downloads will be available on the same day that the DVD is released–quicker than rentals, which are put online about 45 days later and cost $2 to $5.
Last time I looked, you can get DVDs of new videos for less than $20 from Amazon.com. So an Internet download will be more expensive than buying the movie on DVD. But at least there will be some new functionality, right?
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I’ve been meaning to comment on Ed Felten’s fantastic four–part discussion of the nuts and bolts of network discrimination for a while now. In particular, I think his second installment hints at a strong argument against network neutrality legislation:
If a network provider is using minimal delay discrimination, and the high-priority traffic is bursty, then low-priority traffic will usually sail through the network with little delay, but will experience noticeable delay whenever there is a burst of high-priority traffic. The technical term for this kind of on-again, off-again delay is “jitter”.
Some applications can handle jitter with no problem. If you’re downloading a big file, you care more about the average packet arrival rate than about when any particular packet arrives. If you’re browsing the web, modest jitter will cause, at worst, a slight delay in downloading some pages. If you’re watching a streaming video, your player will buffer the stream so jitter won’t bother you much.
But applications like voice conferencing or Internet telephony, which rely on steady streaming of interactive, realtime communication, can suffer a lot if there is jitter. Users report that VoIP services like Vonage and Skype can behave poorly when subjected to network jitter.
And we know that residential ISPs are often phone companies or offer home phone service, so they may have a special incentive to discriminate against competing Internet phone services. Causing jitter for such services, whether by minimal or non-minimal delay discrimination, could be an effective tactic for an ISP that wants to drive customers away from independent Internet telephone services.
Here’s the problem: let’s say Congress has passed a strong network neutrality rule and charged the FCC with enforcing it. Comcast installs some new network equipment that happens to increase the jitter on its networks. Some Vonage user gets annoyed and files a complaint with the FCC.
The FCC investigates. Comcast says that they installed the new routers for reasons that were unrelated to impeding VoIP traffic. Perhaps the new router offers improved performance in other respects, such as increased throughput or better network-maintenance features. Although they suspect Comcast’s executives chose the routers deliberately to increase jitter, they have no way to prove it. The FCC will be forced to make a judgment call: did Comcast violate network neutrality or not?
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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.