December 2007

We’re shifty, untrustworthy foreigners!

by on December 18, 2007 · 0 comments

I was amused to read in the Register about a new breach of UK citizens’ data. Apparently, a disc with data about three million driving test applicants was lost by Pearson Driving Assessments in Iowa, USA. Entertainingly, the article explains:

Most Brits, of course, have no idea where Iowa is and why should they care? But the question remains: what the bleeding nora was the Driving Standards Agency using an Iowa-based company for? Is there no British company that could do whatever it is this bunch of yank chancers was supposed to be doing?

Civil servants can’t guarantee the security of OUR data in this country, and here they are doling it out willy-nilly to shifty, untrustworthy foreigners.

Heads should roll. OUR data should stay in the UK, Its management should not be outsourced all over the planet to save a few pence.

I do my best to stay shifty, and am proud to see my labors finally recognized! More seriously, data security is difficult anywhere – it doesn’t really matter where the data is.

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Copyright Infringement More Tax Evasion than Speeding

by on December 17, 2007 · 8 comments

I earlier analogized copyright infringement to exceeding the speed limit. On reflection, though, I think that understates the case against infringement, and that it more resembles tax evasion than it does speeding. That far from establishes copyright as a natural right. To the contrary, it establishes it as a welfare right, granted by the State, based on the redistribution of wealth, and enjoyed by authors at our expense. Here is how I put it now, in a revised version of what I posted earlier:

When you infringe a copyright, you can admit to breaking the law without also admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience.

So, too, might a citizen drive dangerously close to the Tax Code’s limits. To misjudge, and blunder into tax evasion, could lead to loss of liberty and property. Citizens thus obey the Tax Code for good reason. Voluntary payment of excess taxes remains very rare, however; most people evidently pay their taxes under compulsion rather than out of joy. In that, the Tax Code resembles the Copyright Act. Both rely on positive legislation; both create regulatory regimes; both redistribute property (money in the one case, rights to throats, pens, and presses in the other). We grudgingly accept that the Tax Code and the Copyright Act create special beneficiaries of State power, the former by way of tax credits, the latter by way of exclusive rights. We might even celebrate it, reasoning that both the poor and authors merit our generosity. But we do not speak of a natural right to welfare. Nor should we speak of a natural right to copyright.

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Here Comes Another Bubble

by on December 17, 2007 · 16 comments

This is great:

Unfortunately, TechCrunch says that the video is being pulled from video sites because a photographer who owns a copyright to a photo featured in the video isn’t happy about it being used without permission. Michael Arrington is incensed about this, and argues that the photo is fair use.

Now, Tom is right that Arrington is wrong when he says that using the photo is fair use because it’s being used in a parody. Parody is a fair use defense for using the work being parodied. You can’t just incorporate any old work into a parody and claim fair use.

However, I think the fair use argument here is stronger than Tom suggests. If we take a look at our four factors, factor 4 clearly weighs in favor of fair use (including a low-resolution copy of the photo in a viral video isn’t going to undercut the market for selling the photo), factor 3 is perhaps slightly against fair use (the whole photo is used, but it’s a low-res version, and factor 2 seems pretty neutral.

That leaves the first factor, the extent to which the use is “transformative.” I honestly have no idea how courts would come down on this factor, but certainly it’s not crazy to argue that briefly displaying a photo in a video is fair use. I mean, there are lots of law professors willing to go to the matt for the idea that incorporating short video clips into a longer video is fair use. If that’s fair use, I don’t see how displaying a photo for 3 seconds is any different.

The bottom line, I think, is that we have no idea. The cost of litigating the question would be vastly more than the cost of creating either video or the photo, not to mention more than any possible profit either might make off of them. And as these issues get quietly settled instead of litigating, de jure copyright law drifts ever further away from de facto copyright law.

And Arrington is obviously right that as a policy matter, it’s stupid that copyright law interferes with this kind of creativity. It would be an unacceptable headache to clear the rights to every single image that one wanted to include in a video like that. On the other hand, it’s hard to see how requiring that the rights be cleared does anyone any good. Someone making an amateur video like that isn’t going to pay anybody royalties. He would just use a different image if someone said no. So the public gets a lower-quality viral video, and the photographer still gets nothing.

And I think Arrington is also right that people are going to just keep doing what’s reasonable regardless of what the law says, and at some point the law is going to have to catch up with practice. This certainly isn’t the sort of thing you could get changed in Congress by asking nicely. But on the other hand, professional photographers are going to have no more luck suppressing this sort of thing than the music industry has had combatting file sharing. And at some point it will become obvious that the law doesn’t reflect reality.

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FISA Showdown in the Senate

by on December 16, 2007 · 2 comments

Over at Ars, Julian sums up the state of the legislative battle over domestic eavesdropping:

The current wrangling continues a debate that began this summer with the hasty passage of the Protect America Act in response to a ruling by the FISA court—a ruling which the court has declined to release, but which is purported to have required intelligence agencies to acquire warrants when wiretapping conversations between foreign parties that were routed (and recorded) through US telecom switches. Eavesdropping on purely foreign communications had previously been unrestricted—primarily because, traditionally, the physical tap on foreign-to-foreign calls had occurred overseas, outside US jurisdiction. But the Protect America Act, which is due to expire in February, went beyond merely closing this “intelligence gap” and authorized a broad program of surveillance, under minimal court oversight, that permits Americans’ conversations with foreigners to be collected, so long as the American party to the communication was not “targeted” by an investigation. The bills now under consideration seek to establish a more permanent solution: the Intelligence Committee version of the FISA Amendment would remain in effect for six years, while the Judiciary Committee version sunsets in four.

While media attention has focused largely on the question of immunity for telecom firms, the additional limitations on surveillance contained in the Judiciary Committee’s version of the bill are, arguably, at least as significant. That bill would explicitly bar “bulk” or “vacuum cleaner” surveillance of international telecom traffic that is not directed at a particular person or telephone number. It would require individualized FISA court review whenever the collection of an American’s communications became a “significant purpose” of an investigation, whether or not that person was a “target” of the investigation. And it would provide for a congressional audit of past extrajudicial surveillance by the National Security Agency.

It’s a little depressing that the debate in the Senate will be between a bill that will do a significant amount of damage to civil liberties and one that will do a great deal of damage to civil liberties. As I understand it (although I haven’t read the Senate bills closely) the House version is better than either Senate bill, although even that is far from an ideal bill. Neither house appears to have seriously considered legislation that simply permitted warrantless surveillance of foreign-to-foreign communications as they passes through the United States, which is ostensibly the reason this legislation was needed in the first place.

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Bill of Rights Day

by on December 15, 2007 · 0 comments

It’s Bill of Rights Day, and Tim Lynch has got a run-down on how it’s doing.

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The Morality of Unauthorized Copying

by on December 15, 2007 · 26 comments

To say that copyright does not protect any natural right is not to say that it lacks any moral justification. We naturally frown on unauthorized and misattributed copying. A singer who claims authorship of a song written by another commits a sort of fraud on his listeners. Most of the time, that sort of fraud does not rise to the level of materiality, and thus does not justify litigation. We typically do not rely to any substantial detriment on the accuracy of an expressive work’s description, after all. If we like a work, we like it, regardless of its source. Misdescriptions of authorship can trick us into buying the wrong expressions, however. You might, for instance, buy tickets to a Djelimady Tounkara concert only to find another, lesser guitarist on stage. That would naturally rouse your indignation.

We don’t need copyrights to vindicate that sort of wrong, however; common law and various state and federal statutes already afford many remedies for it. Consumers of misleadingly labeled goods or services can plead fraud under tort law and breach or promissory estoppel under contract law. The licensee of a materially misdescribed work would enjoy a strong contract law defense, one voiding any agreement alleged by the licensor publisher. An author who sees her work sold under another’s name would, as a wronged competitor, have standing to sue for unfair competition under state or federal law. The publisher of such an author might likewise enjoy legal and equitable remedies for passing off. The Federal Trade Commission and its many state counterparts can protect consumers and competitors of falsely labeled expressive works, while various federal and state executive officers can fight such wrongs with the criminal sanctions levied against the many guises of fraud.

Those legal tools give us ample ways to discourage materially harmful misdescriptions of expressive works. We don’t need copyright to satisfy our moral intuitions on that front, and most people’s condemnations against unauthorized copying don’t go much beyond harmful lying.

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Latest Census Numbers on Kids, Parents & Media

by on December 15, 2007 · 3 comments

The kids are alright. Not only is that the title of one of my favorite songs by The Who, but it also happens to be the theme of much of my public policy research. Specifically, I spend a great deal of time analyzing social trends and media usage in an attempt to show that, contrary to what many media critics claim, the whole world is not going to hell. I’ve touched on these themes before in essays such as “Why hasn’t violent media turned us into a nation of killers?” and my PFF paper about “Fact and Fiction in the Debate Over Video Game Regulation.”

In this research, I try to bring some hard evidence to bear on the question of whether there is any correlation between exposure to violent media and real world acts of violence / aggression. And I also try to show that parents are actually far more involved in raising their kids, and instilling good values in them, than critics care to admit. In essence, parents are parenting! I illustrate that in my ongoing book, Parental Controls & Online Child Protection: A Survey of Tools & Methods.” I keep that publication up to date with as much info as I can find on the subject and plan on issuing new versions of the report every few months. (Version 3.0 is due out early next year.)

Exhibit 1
Census1

And now I have some more great stats and charts to include in my report thanks to the release of a big batch of new Census Bureau data on child-parent interaction. The Census Bureau data, which is available here, is part of a report entitled A Child’s Day. The last report was conducted in 1994, and the most recent one in 2004, but the data for 2004 was just recently released.

The results are very encouraging and generally show that “Parents are taking a more active role in the lives of their children than they did 10 years ago,” according to the Census Bureau. For example, as Exhibit 1 above shows, parents are crafting more TV rules for the kids today than they were in the past.

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Technology to inject competition into religion?

by on December 14, 2007 · 2 comments

Here’s a column I just wrote on life extension technologies and religion. And here’s a snippet:

Professor Ron Cole-Turner of the Pittsburgh Theological Seminary discussed how life extension could benefit many religious orders. “Technology will inject competition into religion and force religious authorities to clarify what they mean by immortality.” This is important, according to Cole-Turner because “there is currently a lot of evasiveness about what immortality means.”

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Nerd Porn

by on December 14, 2007 · 10 comments

This is the Ron Paul netroots campaign boiled down to its essence:

I love how 2/3 of the video is an homage to the endless Enterprise fly-bys in The Motionless Picture.

Hat tip: Threat Level

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Why both M and AO ratings for games?

by on December 14, 2007 · 12 comments

During the course of promoting the recent paper I co-wrote with Eli Lehrer, I have come across the same question/complaint from gamers: Why have two adult ratings, both M and AO, when seemingly they perform the same role?

The answer is that they don’t.

The key difference between M and AO is that M is sold in stores like Best Buy and Wal-Mart, while AO is not. This is analogous to movies. While both NC-17 movies and X movies are only available to adults, X rated movies are definitely not sold in Wal-Mart. Though this isn’t an official ESRB stance, most every retailer, large and small will not carry AO games if it sells games to a general audience.

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