Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, James Gattuso, Tim Lee, Adam Thierer, and Derek Slater of the Electronic Frontier Foundation. Topics include,
The FCC issues a notice of inquiry into net neutrality
The latest on the NSA’s warrantless eavesdropping program
Verizon’s patent suit puts Vonage on the verge of bankruptcy
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The other strange thing about the Hollaar essay is how disconnected from the real world it seems on the subject of piracy:
To address such examples, as well as the parody or satirical movie trailers – such as “Brokeback to the Future” – that are clearly transformative uses of a minimal part of a movie, the movie industry might follow the Copyright Clearance Center example and establish an organization that would provide clips of movies that could be used for such purposes, at a nominal royalty or perhaps gratis in some instances. To address such examples, as well as the parody or satirical movie trailers – such as “Brokeback to the Future” – that are clearly transformative uses of a minimal part of a movie, the movie industry might follow the Copyright Clearance Center example and establish an organization that would provide clips of movies that could be used for such purposes, at a nominal royalty or perhaps gratis in some instances.
While this is not a solution that would have met the requirement of the Lofgren bill “to make publicly available the necessary means to make such noninfringing use without additional cost or burden,” it may provide a more attractive solution because it can limit misuse. The clips could be digitally watermarked so that any unauthorized copies could be traced back to their source. This would also prevent the assembling of a complete copy of a movie from “fair use” snippets, since it would raise questions when there was a request for an uninteresting portion of a movie.
Who is he imagining doing this? There are peer-to-peer networks with almost every movie imaginable available for download. While logging onto a peer-to-peer network is a hassle, it’s certainly far less hassle than submitting hundreds of snippet requests and then manually assembling them into a movie. So Hollaar’s proposed snippet security processes only make sense if we imagine that at some point in the future we’ll have eradicated peer-to-peer software from the Internet. If you believe that, I’ve got a bridge to sell you.
The Institute for Policy Innovation has an essay by Lee Hollaar on their website criticizing the fair use critique of the DMCA. The premise of the essay seems to be that DMCA critics haven’t been appropriately specific about which fair uses the DMCA restricts, and that in fact many of the things that DMCA critics call fair use are not, in fact, fair use under the law.
There are two problems with this line of argument. In the first place, Hollaar uses an absurdly narrow definition of fair use in order to argue that DRM systems don’t restrict it. For example:
Very few digital rights management systems prevent transformative fair use of a work, such as including quotes from a work in a criticism, comment, or news report.
It’s obviously true that DRM systems do not prevent you from watching a video and then typing up a transcript of what it says. In fact, it’s so obvious that I wonder if Hollaar’s being a bit obtuse. What DMCA critics are concerned about here is the ability to include video excerpts in their creative works. And DRM schemes clearly do prevent you from doing that.
The other thing that occurs to me as I study Verizon’s patents is that patent law presents some huge problems from the standpoint of the rule of law. We libertarians frequently hammer home the importance of having laws that are clear and predictable. On network neutrality, for example, we point out that no one has been able to come up with language that unambiguously elucidates what is and isn’t allowed.
Yet every single patent is a miniature government regulation. If the FCC had issued regulations that looked like this, we libertarians (myself included) would be kicking and screaming about how unfair it is to expect people to comply with such vague requirements. Yet Vonage has had to stake the future of its company on correctly predicting how the courts will interpret phrases like:
software running on the central processing unit, causing the server to formulate and transmit a reply to a query for translation of a name specified in a second protocol received via the interface, wherein the software controls the central processing unit to include an address of a destination terminal device conforming to the first protocol associated with the name if the server receives the query for translation within a predetermined time window.
…and it goes on for pages and pages. That’s as bad as anything you’ll find in Snowe-Dorgan.
I’m doing a story on the Verizon-Vonage case, and the more I think about the patent system, the more trouble I’m having believing that anyone could seriously support the Federal Circuit’s current patent rules.
So Verizon won its case on three patents, two of which were almost identical. So we’ve got this one, which seems to cover the concept of converting an IP address into a phone number. And then we’ve got this one which seems to cover the concept of making a wireless phone call via the Internet.
I want to step back from the specifics of the case (the Federal Circuit may or may not reverse the ruling—although even if they do, it won’t halp if Vonage has already declared bankruptcy) and ask what possible policy rationale there could be for granting patents like these. Why would we want to set up a system that in principle allows the first person who figures out how to hook the PSTN up to packet-switched networks to have a 20-year monopoly on that market?
Even if we had some insanely innovative guy who in, say, 1992, invented the first VoIP application, and even if at that point no one else had ever thought of sending voice calls over the Internet, I still don’t understand the policy rationale for banning anyone else from developing VoIP software until 2012. Even if it was wildly innovative, novel, and non-obvious in 1992, the shear march of technology would have rendered it obvious long before 2012. Hell, today I suspect most competent CS grad student could develop a perfectly functional VoIP application in a matter of weeks using off-the-shelf programming tools. What’s been holding it back is a lack of infrastructure, not any mysteries about how to write the software.
So somebody explain the argument to me. How does giving a single company a monopoly over an emerging Internet technology—even a company that really is years ahead of its time—good for innovation?
On his blog, Jeff has posted some further thinking about 9/11 and searching for terrorists. He attacks a widespread presumption about that task forthrightly:
The whole point of my 9/11 analysis was that the government did not need mounds of data, did not need new technology, and in fact did not need any new laws to unravel this event!
Jeff feels strongly that Monday morning quarterbacking is unfair, and I agree with him. Nobody in our national security infrastructure knew the full scope of what would happen on 9/11, and so they aren’t blameworthy. Yet we should not shrink from the point that diligent seeking after the 9/11 terrorists, using traditional methods and the legal authorities existing at the time, would have found them.
Fine-tuning patent law (as I have argued here and here) is a task the Supreme Court is best suited to handle, and the Leahy-Hatch / Berman-Smith Patent Reform Act of 2007, introduced yesterday in the Senate and House, thankfully is silent on some of the more contentious patent reform issues. According to Rep. Howard Berman (D-CA),
There are a number of issues which we have chosen not to include in the bill primarily because we hope they will be addressed without the need for legislation. For instance the Supreme Court recently resolved questions regarding injunctive relief. In that category we include amendments to Section 271(f) and the obviousness standard as both issues are currently before the Supreme Court. If either of those issues are not resolved, Congress may need to re-evaluate whether to include them in a patent bill.
Click here for Rep. Berman’s web page containing the text of the proposal and a section-by-section analysis. A very quick initial read indicates that a number of the ideas in the Congressional proposal sound okay in theory but could in practice lead to more uncertainty and new forms of abuse.
My co-blogger Brian Moore notes another of these ridiculous “wi-fi theft” cases, this one in the UK. Brian’s take is spot-on:
I can’t think of a better example of a victim-less crimes. The “victims” were so unconcerned about people accessing their network that they didn’t bother to give it even the minimal security that most wireless access points will automatically prompt you to install. Secondly, absolutely nothing the “perpetrators” did harmed the “victim.” This is a positive externality — this is like me listening to good music coming out of your house. We both benefit from your purchase. It’s better than bad, it’s good!
The only exception would be if the connection burglars were doing something that negatively impacted the owners of the network — such as downloading massive files that slowed their connection. But nothing in the article implies this — they merely saw him sitting in a car across the street with a laptop. If someone cracks your encryption and steals your credit card numbers, then yes, this is a crime. But that’s not what’s happening.
Here’s the crime they were charged with: “dishonestly obtaining electronic communications services with intent to avoid payment.” Imagine a similar crime — I purchase a newspaper and throw it out into the street after I’m done with it. Someone walks by and picks it up, and starts reading it. Then the police arrest him for “dishonestly obtaining paper communications services with intent to avoid payment.” What’s worse, in this example, the original owner of the newspaper has actually lost the ability to use it because there’s only one copy, even if it’s obvious he doesn’t care about it. “Stealing” wireless access doesn’t (normally) impact the owner’s ability to use it.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.