Keeping politicians' hands off the Net & everything else related to technology
Tyler Cowen’s New York Times piece on health care reform.
Which brings me to the topic of Deer Hunting With Jesus, which in its later chapters touches on the troubles of the health care system. This book has gotten a good bit of attention in liberal circles.
I think the Golan decision is a good thing from a policy perspective, given how hard the copyright cartel has worked to keep anything from ever falling into the public domain. However, I share Joe’s puzzlement about exactly how the First Amendment is relevant:
The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.
It seems to me that if the courts find a particular grant of copyright exceeds Congress’s power under the Progress Clause, that, in and of itself, should be sufficient to declare the law in question unconstitutional. Otherwise, why would the framers have gone to the trouble of specifying the precise limits of Congress’s powers to grant patents and copyrights?
Perhaps the legal theory here is that Congress has the power to do whatever it likes unless it runs afoul of a right enumerated in the Bill of Rights, but that, if a Congressional action falls within the scope of the Progress Clause, then it’s constitutional even if it runs afoul of the Bill of Rights. That seems bass-ackwards to me, but of course, I was equally perplexed when the Supreme Court decided that growing pot in your backyard for personal use is “interstate commerce.”
Various toy recalls, particularly those affecting Thomas the Tank Engine, have the parental blogging community alarmed, with the expected calls for more regulation, more testing, more more more. But I wonder if several key factors in product safety having to do with the operation of markets might have been forgotten. And I won’t even mention product liability (except just there).
For reasons I don’t really understand, Apple has slashed its high-end iPhone from $599 to $399. You know what that means? If you move fast you can get the old, discontinued, 4 GB model for $299. That sound you hear is Jerry groaning.
Via Marc Andreessen comes the latest silly example of a foreign government trying to use industrial policy to help its companies catch up to the Silicon Valley. I’ll give you three guesses on how well this plan will work.
Of course, making fun of foreign governments and their search engine projects is old hat here on TLF. More interesting, from my perspective, is this tidbit:
Some blame Japan’s copyright laws for holding back the development of web services. Services such as Google hold copies of other companies’ web pages on their servers. Because Japanese law forbids the duplication of copyrighted works without the rights holders’ permission, Yahoo Japan, Google Japan and other search engines offered in Japan operate from US-based servers.
One wonders how the Internet might have evolved had a similar rule been imposed on the United States in the mid-1990s.
The other thing to say about Paul Graham’s essay is that success at founding startups seems like almost the worst possible metric for judging the value of an Ivy League education. At least the way Graham tells it, to succeed at a startup, you have to be reasonably smart, extremely dedicated, and willing to break a few rules in order to find a new way of doing things. Intelligence is useful for getting into a good college as well, but the other major criteria are almost exactly the opposite. To get into an Ivy League school, you need to be good at following rules, sucking up to grown-ups, and performing activities that look good on your resume whether or not you’re actually interested in them. In some cases, getting into an elite school is helped by having access to good tutors, career counselors, test prep coaching, and in some cases parents willing to make 5-figure donations to their alma maters. The sort of intense, deep, and sustained interest in a single subject that is essential to success at a startup is hard to convey on a college application form or a resume.
Now, the thing is, the skills that are required to get into an elite school actually are useful in a lot of high-status careers. For example, becoming a good doctor involves achieving proficiency at a lot of different aspects of medical practice. You don’t really care if your doctor is capable of devoting months of intense effort to a hard technical problem, as long as he can correctly diagnose your condition and competently administer the remedy.
So I think the question of whether someone’s Ivy League background matters is largely a function of what qualities you’re looking for. An Ivy League degree is a good signal for the kinds of qualities that allow people to get admitted to Ivy League schools. If you’re in a business in which those qualities aren’t important, as Graham is, then it obviously doesn’t make sense to pay attention to where someone went to school.
As someone in a status-conscious profession who didn’t go to an Ivy League school, I would like to believe that Paul Granam is right about this. But although I certainly think it’s true that the value of an Ivy League education is often overstated, I don’t think it’s true that it doesn’t matter where you went to college.
To get the obvious point out of the way first, I believe him that an Ivy League education won’t make you any smarter. If you were smart when they accepted you, you’ll be just as smart when you leave. And since to a first approximation career success is a function of intelligence and determination, neither of which an Ivy League college can impart, I’m not surprised that studies have found little correlation between Ivy League attendance and lifetime earnings.
However, I think an Ivy League institution offers two important advantages, both relating to who your classmates are. First, the intelligence of your classmates determines the pace and intellectual of your classes. Professors pace their classes to be understandable to the average student. If you’re significantly smarter than the average student in a class, you’re not going to learn as much as you could be learning, and if you’re lazy and undisciplined, like I was at 19, you might get bored and stop showing up for class entirely.
Second, in most professions, who you know does matter. It matters more in some professions than others, of course, but there are hardly any professions in which it doesn’t matter at all. Indeed, Graham himself has noted that one of the best ways to meet possible startup-founder-partners is to meet them in college. And although there are smart people at every college, on the margin there will certainly be more smart people at Ivy League schools than non-Ivies.
It matters even more in public policy (this might be largely a reflection of the fact that public policy isn’t an especially meritocratic field, but I don’t think that’s the entire explanation). Being a good journalist, policy analyst, lawyer, lobbyist, etc is largely a function of knowing a lot of people who are doing things related to what you’re doing, preferably in prominent positions. If I’ve got a question on education policy, for example, it’s helpful to have in my rolodex a friend who works on education policy. People who go to Ivy League schools are likely to have a larger number of people in positions of power and influence than people who go to non-Ivies.
I would note that at least from an outsider’s perspective, at least, academia seems to be a bit of a special case in the sense that who your professors were actually does matter. Going to a good school for a PhD allows you to develop relationships with people whose recommendations will carry more weight on the academic job market. This seems to be the same mechanism that makes going to a good law school important to getting good clerkships, which in turn is a major qualification for being a law professor or judge. If you aspire to a profession in which a limited number of slots are doled out using subjective by existing elites, where you went to school can matter quite a lot.
Mark Blafkin objects to my post on the First Sale Doctrine:
Tim is also glossing over the most important point. Free software depends on “license agreements” as much if not more than Ballmer and Co. By my reading, if the courts were to fully subscribe to the ideas of Fred VL and Tim, the entire Copy Left movement would be crippled. They would not be able to impose any of the limitations on use/redistribution that are contained in the various versions of the GPL. The proprietary software industry can probably survive without shrinkwrap licensing as Tim suggests, but I don’t see how the Open Source/Free Software communities can survive under the legal framework that Tim is espousing.
Three points come to mind here. First, the most obvious point is that (as Mark would doubtless agree) we shouldn’t necessarily be interpreting copyright law in a way that privileges free software or any other particular business model. If the overall best interpretation of copyright law means the GPL, as written, can’t be enforced, that’s a problem for Eben Moglen, not for the copyright system. I like free software but I don’t like it that much.
Secondly, a point I gleaned from Fred in last week’s podcast: the first sale doctrine is focused on the distribution right. The GPL, in contrast, primarily implicates the reproduction and derivative work rights. There is not, as far as I know, a First Sale Doctrine with respect to those other rights. That is, if I sell someone the right to reproduce my copyrighted work, there’s no copyright provision that says that person can turn around and sell the right to a third party.
Finally, it’s worth noting that the courts have never been the primary enforcement mechanism for the GPL, which is a social contract as much as it is a legal one. The GPL lays out the preconditions for being a member in good standing of the free software community. The primary penalty for violating the license isn’t that you get sued; it’s that you get ostracized by free software developers. As Novell has discovered, you can be in technical compliance with the letter of the GPL and still get ostracized for violating its spirit. So while it’s obviously better for the free software community if they have the force of law backing them up, the GPL might continue to be useful even if it becomes difficult to enforce in a court of law.
The Times of London recently reported that a London man had been arrested “on suspicion of illegally logging on to a wireless (Wi-Fi) broadband connection.”
Two officers saw the 39-year-old man sitting on a garden wall outside a home in Chiswick, West London. When questioned he admitted using the homeowner’s unsecured broadband connection from his position on the wall. He was arrested and the case was passed to the Metropolitan Police Computer Crime Unit. He was bailed to return in October and faces a fine or a jail term of six months, or both.
Detective Constable Mark Roberts gave warning that anyone caught illegally “hitching” or “piggy-backing” on to another’s wireless broadband connection could face arrest. “This arrest should act as a warning to anyone who thinks it is acceptable to illegally use other people’s broadband connections,” he said. “To do so potentially breaches the Computer Misuse Act and the Communications Act, so computer users need to be aware that this is unlawful and police will investigate any violation we become aware of.”
[The Wall Street Journal’s excellent business technology blogger Ben Worthen wrote about the case here and there are some really excellent comments following that story that you should check out.]
Our own Tim Lee has written about this issue here before in an essay entitled “In Defense of Piggybacking.” In that piece, which he later turned into a New York Times editorial, Tim argued that:
“…there’s absolutely nothing wrong with connecting to an unprotected network. True, it’s rude to saturate someone else’s pipe with massive downloads. But for casual Internet use—web browsing, email, or instant messaging—the bandwidth used is trivial. While it might seem weird or creepy to people not very familiar with the practice, once they become more familiar with it, I think people will realize how harmless it is.”
While I don’t believe anyone should be arrested for wireless piggybacking, I’m not sure I agree entirely with Tim’s view of things either since there may be some real harms that come to both users and service providers from uninhibited piggybacking / wireless squatting. Let me explain.
EFF predicts that the Holt bill will finally be coming to the floor for a vote later this week. As Larry Nordin and I wrote last month (and as I wrote in The American in May) the bill would be an important step in the direction of a more secure and reliable voting process. If you didn’t catch it, be sure to check out the discussion we had on the podcast with Ed Felten on e-voting reform and the Holt bill.
Still, I agree with EFF’s Matt Zimmerman that the Holt bill leaves a lot to be desired:
Are DREs, even those utilizing VVPATs, fraught with problems? Of course. Should more rigorous audits be mandated? Absolutely. But a heartfelt desire to ban DREs or improve audits is no reason to oppose this bill, especially since states are not prohibited from making either of these reforms — or nearly any other voting system-related reform — on their own.
Our support for HR 811 is tempered by profound disappointment that one of the bill’s pillars has been watered down to the point of ineffectiveness due to pressure from the proprietary software industry. The source code disclosure provisions, requiring that voting system source code be disclosed at the very least to litigants and other “qualified persons” who can test the integrity of the voting system under a non-disclosure agreement, have since the bill’s introduction been replaced by a requirement that “voting system software” — a definition that does not explicitly include source code — be disclosed. While “correcting” language was included in the Committee Report as a result of prompt feedback from computer security experts after the bill’s current language was released, that Report will likely not be sufficient to ensure source code access. Having litigated cases in which prompt access to voting system source code is critical, EFF’s strong advocacy for this bill has been based in large part on the source code disclosure requirement. We call on Rep. Zoe Lofgren and the other members of the Elections Subcommittee to promptly fix this provision — using the explicit language included in the Committee Report — before the bill makes it to the floor of the House.
Probably the biggest problem with the latest versions of the Holt bill are the provisions allowing the use of cheap thermal printers in the 2008 and 2010 elections. In my opinion, using these cheap printers might be worse than no paper trail at all, because they’re prone to jamming and because if the paper is left on the reels it can compromise vote anonymity. I would rather have legislation that exempted states entirely for 2008 and imposed more rigorous standards for 2010 than to try to impose half-baked reforms for 2008 that end up making the concept of paper trails look bad.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
