I expanded on these pithy comments in the latter part of this Cato podcast.
January 2008
[My forthcoming book spends a lot of time contrasting copyright with the common law. I thus thought that I should say at least a little about what I mean by the latter.]
[C]ommon law originates in custom, wins recognition in courts, and develops in commentary. Custom naturally comes first. It long ago gave rise to a set of social practices, such as avoiding bloodshed, honoring borders, and upholding oaths, that permit us to live in peace and prosperity. Referring to those and other customs helps common law courts to resolve our disputes justly. A judge might for instance determine reasonable conduct in a tort case by looking to community standards, award legal rights to someone who has long and openly used property entitled to another, or interpret a contract’s language by light of trade usage. In these and other ways custom inspires—if not mandates—the common law. Commentators, looking back over many court decisions and across many years, help us to follow the common law’s meandering path, explaining and rationalizing its wanderings. The common law thus develops from custom, through courts, and to commentary. [The below figure] illustrates.
I had the pleasure of meeting up with old friends from Capitol Hill and making some new friends at a small reception last night. I came away reminded of, and impressed by, the stark cultural divide between Washington insiders and (for lack of a more precise term) “the rest of us.”
It crystalized for me when I joked with one of my former colleagues about how little I had enjoyed lobbying, mostly because of the clients. They so often wanted to do the wrong thing, and I was supposed to go on the Hill and sell it. She agreed: “Clients. They’re the constituents of the lobbying world.”
We understood one another. For Hill staff, constituents are a pesky annoyance you want to be rid of as soon as possible. Having worked in House leadership, she continued to muse, Members of Congress are the constituents of the leadership world.
There’s no place lower on the totem pole than being a constituent. They are to be avoided – buttered up if necessary, but dismissed one way or another as quickly as possible.
I noted a theme in the reactions as I told these old friends about WashingtonWatch.com and the half-million visitors it had last year. For the most part, they’re advocates of one kind or another now, either in lobbying firms or trade associations. I talked about the better access to information WashingtonWatch.com gives people, and their opportunity to advocate through voting, comments, and the wiki functionality on each page.
Blank stares. Frozen smiles. Let’s have another drink! Translating roughtly to: “Oh, the Internet. OK. Uh-huh.”
For all the good energy going into government transparency and public involvement, my sense is that it’s still widely disregarded by the Washington, D.C. mainstream. I suspect it will be quite disruptive when it all “arrives” – that is, when direct and forthcoming engagement with the public is part of the advocacy business model. But it’ll be a while yet.
A new friend I made there is involved in the State Department’s new blogging effort, Dipnote (ambassadorial lingo for “diplomatic note,” I take it). She described some of the reaction State Department folks have had so far to being part of an open blog. (Comments! Two-way communication – eek!)
A decent reserve of resentment has probably built up among the “constituents” of federal agencies, Congress, and the business of governing generally. Americans have been treated as outsiders to their government for too long. Though it’ll be a little rough, it will only be healthy to bring government officials and Washington advocates into more contact with the people that their jobs are all about.
People will believe anything a GPS tells them:
Bo Bai, a computer technician from Sunnyvale who said he was merely trusting his car’s global positioning system when he steered onto the tracks, was cited for obstructing a railroad crossing, officials said this afternoon.
…
“As the car is driving over the tracks, the GPS system tells him to turn right, and he turns right onto the railroad tracks,” said Brucker. “That’s how it happened.”Brucker added, “He tried to stop the train by waving his arms, which apparently was not totally effective in slowing the train.”
Among the GPS-gullible, I include myself. Especially in unknown territories, I’ll try whatever the GPS tells me, that blanket warning and disclaimer at its startup notwithstanding. This seems to be a field ripe for litigation.
Credulity also opens opportunities for hacks, and that’s just what’s under development in Italy, it seems:
Two Italian hackers have figured out how to send fake traffic information to navigation systems that use a data feature of FM radio for real-time traffic information. Using cheap, off-the-shelf hardware, they can broadcast traffic data that will be picked up by cars in about a one-mile radius, the hackers said during a presentation at the CanSecWest event here.
“We can create queues, bad weather, full car parks, overcrowded service areas, accidents, roadwork and so on,” Andrea Barisani, chief security engineer at Inverse Path, a security company.
Perhaps a reason to be wary of bootlegged or discount map-data. Or wary of unlikely instructions from any electronic device.
Via Obscure Store, here is “The Office” segment where Michael trusts his GPS too much…
Reading the tea leaves of delay, Reuters reports (via Drudge) that the DOJ may be gearing up to derail the planned merger, announced 10 months ago, between the nation’s two satellite radio providers:
The delay may be due to the complexity of the issues raised by the merger of the only two U.S. satellite radio companies — or because the Department of Justice (DOJ) is putting together a case to block the deal in federal court, analysts at Stifel Nicolaus said in a research note on Thursday.
Alternatively, top officials at DOJ may be leaning toward approval but might still be weighing arguments from staffers who oppose the deal, Stifel Nicolaus said.
Only in the mind of a regulator or a terrestrial radio broadcaster (i.e., competitor) could this proposed merger present issues of great complexity–the only issue on the table is the market definition, which may be contentious but is not overly complex, except perhaps to those who wish to make it so.
My suggestion: The FCC and DOJ should look at who’s opposing this merger in defining the market.
If this is a complex case, antitrust enforcement is, whatever its merits or lack thereof, just broken. It’s a wonder that any proposed merger gets through review, no matter the outcome.
For more on the merger, check out these thoughtful posts by TLF’s Adam Thierer:
As Adam guessed, I have some opinions about this Jaron Lanier piece on open source software. Like most of what Lanier writes, mostly found it incoherent. Lanier makes extensive use of biological metaphors, but if we’re going to make an evolution metaphor, the messy open source development pattern certainly has more in common with evolution than the rigid hierarchy of a traditional proprietary development process.
But the real problem with Lanier’s essay is that I don’t think the question makes any sense in the way that he phrases it. He’s interested in the origins of “radical creativity.” But radical creativity is almost always the product of a brilliant individual or small group creating something new from scratch. For such an individual, the open-vs.-closed dichotomy doesn’t make a lot of sense. His ability to produce a breakthrough product (think Marc Andreesen with Netscape or Larry and Sergei with Google) doesn’t have anything to do with what license he plans to release it under upon completion. As it happens, a lot of innovative stuff is produced by for-profit companies, and for-profit companies often believe they can make more money releasing their product as a closed-source product than an open-source one. But any one of those companies could have released their products as open-source products, and indeed some for-profit companies do.
Where the open-versus-closed debate matters is what happens after version 1.0 is released. Generally speaking, open software provides a better platform for subsequent development than closed products. Proprietary software products are the captives of their initial developers. If the initial developers become incompetent or decide that continued development is no longer profitable, the entire ecosystem surrounding that product can die. As a result, building a product atop a proprietary foundation is always a huge risk.
I’m tired of making new year resolutions that I can’t live up to. So, this year I’ve decided to set some realistic goals for myself so I can feel better about my accomplishments at year’s end. Thus, in 2008, I resolve to…
* drink more beer;
* eat plenty of fatty junk foods;
* play more video games;
* and waste even more time online surfing eBay and reading nerdy tech policy blogs.
OK, now I need to get busy living up to these goals. I feel good about my chances. I’m cracking open a Newcastle Nut Brown Ale right now and getting ready to sit down in front of the TV to play some Xbox with my kids. I think we’re splitting a bag of Doritos for dinner. Happy New Year!
Conservative lion Richard Viguerie doesn’t like Fox excluding Ron Paul from their New Hampshire debate, and he isn’t shy about saying it. (Nor is he shy about promoting his book.) He makes – and reveals – some interesting points about media bias. It’s welcome to see any media outlet criticized for any reason. There was a time when there wasn’t even a practical way to get the word out.
I was sick of social networking before it was cool. (I may still have an account on Ryze, for heaven’s sake.) But I am growing intrigued with the concept once again. Perhaps I’m having my own little Social Networking 2.0! (OK. That’s all the self-reference I’ll do in 2008 – I guarantee it.*)
I’m interested in the brouhaha that Plaxo has created by creating a process in which they screen-scrape Facebook members’ email addresses. Facebook presents them as images to make harvesting difficult, but apparently Plaxo is using OCR to gather them, contrary to Facebook’s Terms of Service. Best of all, Plaxo is using journalists and bloggers to test it. Robert Scoble has gotten zapped by Facebook for using the Plaxo scraper.
There are wonderful competitive issues, PR issues, and privacy issues here, all balled together in an ugly mass.
I think Michael Arrington has it right:
Beyond the automated script issue, Facebook also has a very good reason for protecting email addresses – user privacy. Robert Scoble may be perfectly fine with having my contact information be easily downloaded from Facebook, but I may not be. Ultimately it should be me that decides, not him. And if Plaxo wants to push the envelope on user privacy issues, again, perhaps they should at least have given Facebook a heads up. And be prepared to take the consequences themselves instead of passing them off to their users.
*not a guarantee
A Bear Stearns report examines at the economics of the Wall Street Journal knocking down its paid-subscription wall:
WSJ.com revenue is currently pegged at $78 million annually, based on an estimated 989,000 subscribers paying $79/year. Including non-subscriber traffic, the company claims 122.4 million monthly page views. Based on an estimated CPM of $6 and a few other assumptions about sell-through rate and ad impressions per page, Wang arrives at the 12x conclusion.
Still, as Joseph Weisenthal notes, “$78 million in revenue only accounts for an estimated 4 percent of Dow Jones revenue, so from a strictly financial stance, it doesn’t much matter either way to News Corp.,” the Journal‘s new owner.
Where I work, we’re very wary of static economic analyses: why should a huge change (e.g., raising tax rates) have no impact on behavior (e.g., hours worked)? Yes, certainly, lowering the cost of getting Journal content to $0 will undoubtedly bring a surge in readership–maybe 12X, maybe more, maybe less. That’s not the interesting question.
The big question for media watchers should be, how will the Journal react?
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