This is nothing new, but it’s something that grinds my gears to no end, and that’s how the DMCA makes it illegal for me to use works that are completely in the public domain. Researching my previous post, I had occasion to download and read a PDF of the 9/11 Commission Report. This is a report created by the federal government and therefore has no copyright; it is in the public domain. Nevertheless, when I selected some text and and hit ⌘-C to copy it, I get this lovely message:
If I click to enter a password it tells me that I have permission to read and print the document, but not to copy from it. Because there is no copyright, the government has no right to prevent me from copying. I could circumvent the DRM on the PDF, but then it’s possible that I’d be violating the DMCA (not the way I read it, but I’d have to take the risk). Even if I’m not breaking the law by circumventing the DRM, how am I supposed to do that? I have no hacking skills; I’m just a non-profit lawyer trying to read a government document. Normally I’d buy some software utility that would let me do this, but such a utility is something the DMCA definitely prohibits. I better start writing my petition for a Copyright Office exemption next time they grant them in two years.
Some people seem to think that this was outrageous. Others think it’s funny. Put me in the latter category:
Assistant Attorney General John Grossman called the light boards “bomblike” devices and said that if they had been explosive they could have damaged transportation infrastructure in the city.
Judge Paul K. Leary told Grossman that, according to law, the suspects must intend to create a panic to be charged with placing hoax devices.
It appears the suspects had no such intent, the judge said, but the question should be discussed in a later hearing.
Continue reading →
Implementing the 9/11 Commission’s recommendations was the House Democrat’s top priority during their recent “first 100 hours” legislative spree. One of the recommendations addressed in the resulting H.R. 1 bill had to do with public safety communications interoperability. The 9/11 Commission found that communications between firefighters, police officers, and other emergency personnel failed that day with deadly consequences. Here is a quick analysis of H.R. 1’s interoperability provisions, as well as the Commission’s recommendation itself, in which I argue that they are both overlooking the fundamental causes of the interoperability problem.
Continue reading →
My lefty alter ego Tom Lee comments on my post on video game piracy:
To some extent I think Tim is right: music is a unique case. But that’s mostly because the industry that arose to distribute music was so bloated, stupid and inefficient. Having claimed nearly all of the profit from retail music sales, the record companies are the part of the music industry that’ll withering first in the face of rampant piracy. That’s shielding the actual music creators from piracy’s effects–for now, anyway. Successful but non-superstar artists found different, largely concert- and merch-based means of earning a living a while ago.
But the lack of a large, parasitic & evil distribution mechanism (or at least one as evil) doesn’t mean that the videogame industry can be saved by copyright any more than the record companies can (the question of whether it should be saved strikes me as fairly irrelevant). The game companies’ business is vulnerable, too, and will ultimately have to transform itself. The wealth of DRM options available to game-makers and the console vendors’ closed systems give them a more luxurious position, but with the rise of networked consoles and the maturation of a market for pirate technologies like Alcohol 120% and console modchips, that era is coming to an end.
But that’s okay. The bloated budgets of the high-profile videogame franchises is a bug, not a feature. Look at the success of the videogames Burger King has been selling–they’re short and simple, but they only cost a few bucks and the restaurant has sold 3.2 million of them. I’m sure they were envisioned as a promotional tool more than anything else, but now BK is claiming they helped their bottom line. There’s clearly room for growth in this segment of the market. The idea that every videogame has to be a (shooter|RPG|platformer|sports game|GTA clone) and cost $60 is ridiculous.
I think there are actually two conceptually distinct questions here. One is the empirical question of whether rampant piracy will undermine the traditional business model for music, video games, etc. The other is a policy question about whether that process is something we ought to be cheering on, or if we should be looking for ways to reverse the process.
Continue reading →
Ars reports on what seems to be a genuine case of piracy choking off a popular gaming title:
Sports Interactive had made Eastside Hockey Manager 2007 available only via digital distribution in an attempt to give the game a wider reach in Europe and North America. Unfortunately for Sports Interactive, the end result was a hacked version of the game that was quickly distributed via BitTorrent.
“The orders came in a drizzle, rather than a flood,” wrote Jacobson. “We scratched our heads trying to work out what had gone wrong. And then someone pointed out that the game was being pirated, and was available as a torrent from lots of different pirating sites. Then sat there and watched as the claimed amount of downloads on those sites went up and up, as sales stayed static.”
The end result was a popular game that had “more licenses than any other hockey game in history,” according to Jacobson, but was apparently so widely distributed over peer-to-peer networks that the company was not able to make back the development or licensing costs. Although Jacobson left open the possibility that SI may resurrect Eastside Hockey Manager in the future, he said that all development on the game has been halted and the programmers and others that worked on the title have been reassigned to other projects within the company.
In some industries, such as music, I’m sympathetic to the argument that we’d get along just fine without copyright. But as I’ve said before, I think there are other categories of content that would be significantly impoverished without copyright protections. Video games, which are subject to soaring costs appears to be in the latter category.
OK, last post on the Herman paper. I’m especially pleased that he took the time to respond to my “regulatory capture” argument, because to my knowledge, he’s the first person to respond to the substance of my argument (Most of the criticism focused on my appearance and my nefarious plot to impersonate the inventor of the web):
Timothy B. Lee insists that BSPs will have more sway than any other group in hearings before the FCC and will therefore “turn the regulatory process to their advantage.” He draws from a vivid historical example of the Interstate Commerce Commission (“ICC”), founded in 1887. “After President Grover Cleveland appointed Thomas M. Cooley, a railroad ally, as its first chairman, the commission quickly fell under the control of the railroads, gradually transforming the American transportation industry into a cartel.” Yet this historic analogy, and its applicability to the network neutrality problem, is highly problematic. Even the ICC, the most cliché example of regulatory capture, was not necessarily a bad policy decision when compared with the alternative of allowing market abuses to continue unabated. One study concludes “that the legislation did not provide railroads with a cartel manager but was instead a compromise among many contending interests.” In contrast with Lee’s very simplistic story of capture by a single interest group, “a multiple-interest-group perspective is frequently necessary to understand the inception of regulation.”
Herman doesn’t go into any details, so it’s hard to know which “market abuses” he’s referring to specifically, but this doesn’t square with my reading on the issue. I looked at four books on the subject that ranged across the political spectrum, and what I found striking was that even the ICC’s defenders were remarkably lukewarm about it. The most pro-regulatory historians contended that the railroad industry needed to be regulated, but that the ICC was essentially toothless for the first 15 years of its existence. At the other extreme is Gabriel Kolko, whose 1965 book Railroads and Regulation, 1877-1916 argues that the pre-ICC railroad industry was fiercely competitive, and that the ICC operated from the beginning as a way to prop up the cartelistic “pools” that had repeatedly collapsed before the ICC’s enactment. Probably the most balanced analyst, Theodore E Keeler, wrote in a Brookings Institute monograph that that in its early years, the ICC “had about it the quality of a government cartel.”
Continue reading →
I’m going to wrap up my series on Bill Herman’s paper by considering his response to counter-arguments against new regulations. I think he has the better of the argument on two of the criticisms (“network congestion” and “network diversity”), so I’ll leave those alone, but I disagree with his other two criticisms. Here’s the first, which he dubs the “better wait and see” argument:
Several opponents of network neutrality believe that the best approach is to wait and see. They are genuinely scared of broadband discrimination, but they would rather regulate after the situation has evolved further. The alleged disadvantage is that regulating now removes the chance to create better regulation later, and it accrues the unforeseen consequences described below. Felten provides a particularly visible and eloquent example of this argument. He agrees that neutrality is generally desirable as an engineering principle, but he wishes the threat of regulation could indefinitely continue to deter discrimination.
Unfortunately, the threat of regulation cannot indefinitely postpone the need for actual regulation. In the U.S. political system, most policy topics at most times will be of interest to a small number of policymakers, such as those on a relevant Congressional subcommittee or regulatory commission. This leads to periods of extended policy stability. Yet, as Baumgartner and Jones explain, this “stability is punctuated with periods of volatile change” in a given policy domain. One major source of change, they argue, is “an appeal by the disfavored side in a policy subsystem, or those excluded entirely from the arrangement, to broader political processes–Congress, the president, political parties, and public opinion.”
A key variable in the process is attention. Human attention serves as a bottleneck on policy action, and institutional constraints further tighten the bottleneck. Specialized venues such as the FCC will be able to follow most of the issues under their supervision with adequate attention, but most of the time the “broader political processes” pay no attention to those issues.
As I’ll explain below the fold, I think this dramatically underestimates the success that the pro-neutrality side has had in raising the profile of this issue.
Continue reading →
I’ve been pretty critical of Bill Herman’s paper on network neutrality regulation, so I wanted to highlight a section of the paper that I thought was extreme sensible, and I hope that Herman’s allies in the pro-regulatory camp take his recommendation seriously:
I would offer just two minor improvements by way of clarification. First, the bill is reasonably clear but could be more explicit so that the prohibition on broadband discrimination applies only to last-mile BSPs and not to intermediate transmission facilities, where the market is highly competitive and, due to packet-switching, very unlikely to lead to bottlenecks. It may be the case that, for some services, content or application discrimination is necessary; but senders and receivers should be able to choose freely among intermediate service providers or choose not to use such services. Second, the bill should add an additional clarification for establishments such as schools, libraries, government buildings, and Internet cafes that provide Internet service via computer terminals that are owned by the establishment. In the bill’s current exemption permitting BSPs to offer “consumer protection services” such as anti-spam and content filtering software, BSPs are required to offer such services with the proviso that end-users may opt out. In the case of establishments offering patrons access to the Internet on establishment-provided computers, the owner of the computer–not the user–should be able to choose whether or not such software is optional.
If we do wind up with new regulations, I think it’s very important that they be limited to those segments of the Internet where there is at least a plausible case that the lack of competition endangers the end-to-end principle. That’s clearly not the case for the Internet backbone, for high-end Internet service targeted toward businesses, or among the thousands of businesses, such as hotels and coffee shops, that now offer Internet access.
Continue reading →
The Miami Herald is predicting that newly elected Florida governor Charlie Crist will be the latest elected official to come out against DREs:
Gov. Charlie Crist will recommend on Thursday that Florida’s problem-plagued touchscreen voting machines should go the way of the butterfly ballot–the trash heap–and his proposed budget will recommend replacing them all with optical scan machines, which produce a paper trail, at a cost of up to $35 million.
U.S. Rep. Robert Wexler, a Boca Raton Democrat, will join the governor in Palm Beach County to announce that his proposed budget will include the money to pay for replacing the machines in 15 counties, said Josh Rogin, Wexler’s deputy chief of staff.
”It’s something we’ve been working on for a long time,” Rogin said of Wexler’s six-year battle to require counties to have a paper trail.
Rogin said the governor’s office will recommend replacing the touchscreen machines with optical-scan machines, even though counties have spent millions acquiring the equipment.
The governor’s office would not confirm or deny the reports. The secretary of state’s office said the cost to replace the machines would be at between $30 million and $35 million.
It’s remarkable how quickly the conventional wisdom on this issue has shifted. When researchers raised alarms less than four years ago, they were regarded by many as paranoid eccentrics. Even in the wake of alleged e-voting problems in the 2004 elections, it was still challenging to get elected officials to pay attention to the issue. Now, as more and more politicians begin to publicly question the security of e-voting, it’s beginning to look like it’s only a matter of time before states start scrapping their DREs en masse.
I wanted to quickly follow up on my earlier post regarding Peter Huber’s excellent essay about how Net neutrality will lead to a bureaucratic nightmare at the FCC and a lawyer’s bonanza once the lawsuits start flying in court. I realized that many of the people engaged in the current NN debate might not have followed the Telecom Act legal wars that took place from 1996-2004 which frame the way both Huber and I think about these issues and why we are so cynical about regulation.
Let’s start with the bureaucracy that can be spawned by seemingly simple words. For example, the Telecom Act of 1996 contained some extremely ambiguous language regarding how the FCC should determine the “cost” of various network elements (wires, switches, etc..) that incumbent telecom operators were required to share with their competitors. Now how much legal wrangling could you expect over what the term “cost” meant?
Well, in the years following passage of the Telecom Act, entire forests fell because of the thousands of pages of regulatory and judicial interpretations that were handed down trying to figure out what that word meant. In fact, let’s take a quick tally of the paperwork burden the FCC managed to churn out in just three major “competition” rules it issued in an attempt to implement the Telecom Act and define the “cost” of unbundled network elements (“UNEs”):
* Local Competition Order (1996): 737 pages, 3,283 footnotes
* UNE Remand Order (1999): 262 pages, 1,040 footnotes
* UNE Triennial Review (2003): 576 pages; 2,447 footnotes
That’s 1,575 pages and 6,770 footnotes worth of regulation in just three orders. This obviously does not count the dozens of other rules and clarifications the FCC issued to implement other parts of the Telecom Act. Nor does it include the hundreds of additional rules issued by state public utility commissions (PUCs), who actually received expanded authority under some of these FCC regulatory orders.
Again, this was all implemented following the passage of a bill (The Telecom Act) that was supposed to be deregulatory in character !!! But wait, it gets worse.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.