My former boss David Boaz has a great post lamenting Google’s decision to dramatically expand its political muscle:
Google’s brilliant staff are now spending some of their intellect thinking up ways to sic the government on Microsoft, which is once again forced to give consumers a less useful product in order to stave off further regulation. The Post’s previous story on Google’s complaint called it ”allegations by Google that Microsoft’s new operating system unfairly disadvantages competitors.”
Bingo! That’s what antitrust law is really about–not protecting consumers, or protecting competition, but protecting competitors. Competitors should go produce a better product in the marketplace, but antitrust law sometimes gives them an easier option–asking the government to hobble their more successful competitor.
Recall the famous decision of Judge Learned Hand in the 1945 Alcoa antitrust decision. Alcoa, he wrote, “insists that it never excluded competitors; but we can think of no more effective exclusion than progressively to embrace each new opportunity as it opened, and to face every newcomer with new capacity already geared into a great organization, having the advantage of experience, trade connection and the elite of personnel.” In other words, Alcoa’s very skill at meeting consumers’ needs was the rope with which it was hanged.
I look forward to more competition between Microsoft and Google–and the next innovative company–to bring more useful products to market. But I’m saddened to realize that the most important factor in America’s economic future — in raising everyone’s standard of living — is not land, or money, or computers; it’s human talent. And some part of the human talent at another of America’s most dynamic companies is now being diverted from productive activity to protecting the company from political predation and even to engaging in a little predation of its own. The parasite economy has sucked in another productive enterprise, and we’ll all be poorer for it.
I regard Google as the good guys on at least some of the issues their lobbyists are likely to focus on. But the broader point is spot on: these lobbying battles are a massive waste of talent. The more power Washington has over the technology industry, the more money companies will spend ensuring that that power is used to help, rather than hurt them. This is one of the reasons it’s a good idea to think twice before enacting legislation that will expand government power.
The FCC’s call for comments on net neutrality ended on Friday and, as Wired News reports, over 11,000 individuals had something to say on the issue. As much as I like the idea of people getting involved in politics, the NN issue has brought out the sad, herd-like, mentality of a lot of people who simply want to vent against what they see as “the fabulously wealthy and the corporate world” (see Wired piece).
Net neutrality is a non-issue that became a big issue BECAUSE some fabulously wealthy corporations (think Google and Ebay here) wanted everyone to get into a tizzy so they had better bargaining chips for broadband prices for themselves. Indeed, the nature of the net neutrality debate was recently revealed when a bill to establish net neutrality principles was defeated in Maine. After the defeat, supporters of net neutrality claimed a victory simply because the legislature agreed to a non-binding resolution to study the issue. Claiming success when the reality is actually defeat smacks of the kind of tactics corrupt dictatorships resort to in their last days. Perhaps this is a sign that the net neutrality militia is about to go belly-up.
Ars reports that Illinois is the latest state to jump on the franchise reform bandwagon. I haven’t looked at the specific bill, but if it’s anything like Missouri’s legislation I think it’ll be good for consumers.
Perhaps the best thing about it is that each new telecom bill that passes reduces the risk of new telecom legislation at the federal level. Franchise reform was near the top of the telcos’ wish list in the last Congress, and without that spur, they’re likely to lobby against any changes in telecom rules. Eighteen months ago I argued that we should all be rooting for the telecom bill to go down in flames, and I got my wish in the last session. I’m rooting for the same outcome this session.
The very Department of Homeland Security that is seeking to require states to collect and share information on every driver and state ID card holder, including scanned copies of their birth certificates, “suffered more than 800 hacker break-ins, virus outbreaks and other computer security problems over two years, senior officials acknowledged to Congress.”
In one instance, hacker tools for stealing passwords and other files were found on two internal Homeland Security computer systems. The agency’s headquarters sought forensic help from the department’s own Security Operations Center and the U.S. Computer Emergency Readiness Team it operates with Carnegie Mellon University.
In other cases, computer workstations in the Coast Guard and the Transportation Security Administration were infected with malicious software detected trying to communicate with outsiders; laptops were discovered missing; and agency Web sites suffered break-ins.
Today, PFF has released my latest book: Parental Controls and Online Child Protection: A Survey of Tools and Methods. The entire publication is online and can be downloaded at http://www.pff.org/parentalcontrols (Note: I will be making constant updates to the book in coming months and will post them to that site).
As the title implies, the report provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. I put this report together to show policymakers, the press and the public that many constructive options exist that can help parents control media in their homes and in the lives of their children.
While it can be a formidable challenge to be a parent in an “always-on,” interactive, multimedia world, luckily, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms. In the past, the OFF button was the only technical control at a parent’s disposal. Today, by contrast, parents (like me!) have myriad tools and methods to restrict or tailor media content to their own household tastes and values. Those restrictive tools include: the V-Chip and TV ratings; cable and satellite set-top box screening tools; DVD blocking controls; cell phone blocking tools; video game console controls; Internet filtering and monitoring tools, instant messaging monitoring tools; operating system controls; web browser controls; search engine “safe search” tools; media time management devices, and so on. You will find an exhaustive discussion of all these tools and many others in my book.
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Google’s new blog has a post laying out their position on network neutrality. I’m probably missing something, but it strikes me as rather incoherent:
What kind of behavior is okay?
Prioritizing all applications of a certain general type, such as streaming video;
Managing their networks to, for example, block certain traffic based on IP address in order to prevent harmful denial of service (DOS) attacks, viruses or worms;
Employing certain upgrades, such as the use of local caching or private network backbone links;
Providing managed IP services and proprietary content (like IPTV); and
Charging consumers extra to receive higher speed or performance capacity broadband service.
On the other hand:
What isn’t okay?
Levying surcharges on content providers that are not their retail customers;
Prioritizing data packet delivery based on the ownership or affiliation (the who) of the content, or the source or destination (the what) of the content; or
Building a new “fast lane” online that consigns Internet content and applications to a relatively slow, bandwidth-starved portion of the broadband connection.
So if Verizon builds a 30 Mbps pipe to consumers’ homes, and allocates 25 Mbps to a proprietary IPTV service (“Providing managed IP services and proprietary content”) and 5 Mbps to public Internet traffic, is that OK? What if they then consign all video traffic (“all applications of a certain general type”) in the public Internet to the lowest priority, rendering it effectively unusable? And can they then syndicate content from third parties through their IPTV service?
If so, I don’t understand what network neutrality is supposed to accomplish. If not, how am I mis-reading Google’s proposal?
This series of reports on the remarkable growth of the telecom and ecommerce sectors in Brazil since the phone system was privatized makes for upbeat reading.
http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=3901B9B2-66A2-47EF-8A4F-0E598052BF1B
http://www.crito.uci.edu/publications/pdf/gec/brazil.pdf
http://www.internetworldstats.com/sa/br.htm
http://www.midwestbusiness.com/news/viewnews.asp?newsletterID=11893
Apparently using elaborate licensing terms to extend the rights granted under copyright and patent law are not a new idea, nor are they limited to the software industry. From a record manufactered before 1909:
This record which is registered on our books in accordance with the number hereon, is licensed by us for sale and use only when sold to the public at a price not less than one dollar each. No license is granted to use this record when sold at a less price. This record is leased solely for the purpose of producing sound directly from the record and for no other purpose; all other rights under the licensor’s patents under which this record is made are expressly reserved to the licensor. Any attempt at copying or counterfeiting this record will be construed as a violation of these conditions. Any sale or use of this record in violation of any of these conditions will be considered as an infrinement of our United States patents, Nos. 524543, dated February 19, 1895, and 548623, dated October 29, 1895, issued to EMILE BERLINER, and No. 739,318, dated September 22, 1903, and No. 778,976, dated January 3, 1905, and of our other U.S. patents covering this record, and all parties so selling or using the record, or any copy thereof, contrary to the terms of this license, will be treated as infringers of said patents, and will render themselves liable for suit.
I don’t know enough about copyright history to be sure, but my guess is that the reason they talk so much about patent law is that I believe “mechanical reproductions” of music were not covered by copyright law until the 1909 Copyright Act. So record companies apparently attempted to use patent law plus some creative contract terms to create the contractual equivalent of copyright.
I have the bad feeling that I’m going to find myself disagreeing with Larry Lessig a lot more in the next few years.
Lessig did a post today announcing that he’s going to be re-orienting his research away from copyright issues:
From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a “no brainer.” As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose.
Yet governments continue to push ahead with this idiot idea — both Britain and Japan for example are considering extending existing terms. Why?
The answer is a kind of corruption of the political process. Or better, a “corruption” of the political process. I don’t mean corruption in the simple sense of bribery. I mean “corruption” in the sense that the system is so queered by the influence of money that it can’t even get an issue as simple and clear as term extension right. Politicians are starved for the resources concentrated interests can provide. In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars.
Now, I wholeheartedly agree with his assessment that lobbyists often corrupt the political process. And certainly copyright law—an issue on which I share almost all of his views—is a prime example of that. He’s quite right that there’s no plausible policy argument for retroactive copyright extension, yet Congress did it because of the lobbying might of the copyright lobby.
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From within the libertarian camp, one of the stronger anti-copyright arguments is the point that it is hard to prove empirically that copyright in fact fosters creativity, especially as compared to some of the alternatives to copyright. How does one go about showing that in the absence of copyright, there would be fewer created works or fewer quality created works or a lesser range of types of created works? To show this conclusively, one would need to know what would have happened in the absence of a market. For the same reason, though, it is hard to show that copyright (or related laws) do any harm; one would need to know what would have happened in the the absence of copyright.
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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.