April 2008

Over at Larry Lessig’s blog, David Friedman has a really interesting comment about libertarian attitudes toward patent and copyright law (I’m going to relax my usual rule about the phrase “IP” because of the way Friedman and Lessig have framed it):

You write: ” There is a divide in the libertarian camp about IP extremism.”

I think that understates the case. There has long been a divide among libertarians about IP itself. Some see it as the purest and most morally defensible form of property, on the grounds that it is produced by the human mind without using any unproduced resources, such as land, which one might have difficulty justifying the ownership of. Others see it as a clear violation of rights, on the grounds that if something such as a book belongs to me, I have the right to do with it as I will.

This is an accurate summary of the state of play among philosophically-minded libertarian generalists. Anybody’s who’s spent a lot of time in libertarian circles can almost recite the competing arguments in their sleep. Frankly, they start to seem kind of vacuous after a while.

This is most obvious in the anti-“IP” camp. If you believe that copyright and patent law are nothing but infringements on peoples’ natural rights, then you have a simple, compelling answer to every question in this area of law. You’re also going to be completely left out of the practical discussions of copyright and patent reform. Because if all copyright and patent monopolies are illegitimate, there’s no obvious way to tell which ones are the most illegitimate. Or to put it a different way, if you’re an “IP” abolitionist and you want to participate in contemporary policy debates, you need to have an additional set of principles that tells you which parts of the copyright and patent systems to reform first, and these principles are ultimately going to do more to drive your policy choices than the principled opposition to government monopolies in all of their forms.
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Several of the installments in my ongoing “Media DE-consolidation” series have involved Time Warner taking apart the media mega-company it created back in 2000. [See, for example, parts 12, 14 and 21]. The relationship was a bit rocky right from the start, and things have been unraveling slowly ever since. You will recall the amazing front page story in the Wall Street Journal in 2006 in which Time Warner President Jeff Bewkes declared the death of “synergy” and, more poignantly, Bewkes went so far as to call synergy “bull—t”!

Today, another major split occurred when, as many had anticipated for some time now, TW announced the spin-off of its Time Warner Cable unit. Here’s the NYT’s summary:

Jeffrey L. Bewkes, the chief executive of Time Warner, continued to trim what has for years been the world’s largest media company by announcing Wednesday that it would completely spin off its cable company. The news — which was not unexpected and follows an earlier transaction in which a portion of the cable unit was spun off into a separate public company — came as Time Warner reported quarterly earnings that were largely in line with Wall Street’s expectations. “We’ve decided that a complete structural separation of Time Warner Cable, under the right circumstances, is in the best interests of both companies’ shareholders,” Mr. Bewkes said Wednesday in a statement. “We’re working hard on an agreement with Time Warner Cable, which we expect to finalize soon.”

One must remember that when the marriage was struck 8 years ago, the AOL-Time Warner deal received wall-to-wall coverage and apocalyptic-minded critics claimed it represented “Big Brother,” “the end of the independent press,” and a harbinger of a “new totalitarianism.” Now that the marriage is gradually falling apart, we hear a few things about it here and there, but no one seems to care all that much. The stories are mostly buried in the pack of the business pages and receive limited coverage online. Regardless, it serves as yet another sign of how dynamic and volatile the media marketplace is today.

Susan Crawford points out that the Yale Information Society Project recently posted its “9.5 Theses for Technology Policy in the Next Administration.” It’s apparently also the theme for the 18th Annual Computers, Freedom, and Privacy Conference (CFP).

What I found intriguing about the list is that (a) protecting free speech doesn’t make their radar screen, which seems both sad and puzzling since it will continue to be under attack regardless of who is in charge next year; and, (b) perhaps less surprisingly, much of what they are calling for the next administration to do would involve more regulation of the Internet, broadband networks and media markets. Here’s their list and how I would score each item [Note: I am using CAPS below not to scream, but just to differentiate my scoring versus their proposal]:
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Larry Lessig, Demagogue?

by on April 30, 2008 · 92 comments

Tom Sydnor and Richard Bennett have both made a big deal of the fact that Larry Lessig is purportedly a demogogue. Richard, for example, says:

It’s an error to consider Lessig a serious scholar with serious views about serious issues. He’s a performer/demagogue who will latch onto any issue that he can use to promote the Lessig brand.

At the Stanford FCC hearing, he portrayed capitalism as a law of the jungle, in pictures of tigers eating prey. What intellectual critique if appropriate to refute that point of view, a picture of George Soros writing a fat check to Free Press so they can bus partisans to the hearing?

Now as it happens, I watched Lessig’s Stanford presentation, so I know what Richard is referring to here. And while this characterization is not wrong, exactly, it’s certainly not a fair summary of Lessig’s point. Here’s what he actually said:

If we had right policy, I don’t think that we would be talking about questions of trust. I don’t think the Department of Justice after the IBM case was talking about whether we trust IBM, or trust Microsoft, or trust Google. We don’t talk about trusting a company just like you don’t talk about trusting a tiger, even though the brand management for tigers has very cute images that they try to sell you on how beautiful and wonderful the tiger is.

If you looked at that picture and you thought to yourself the great thing for my child to do would be to play with that tiger you’d be a fool because a tiger has a nature. The nature is not one you trust with your child. And likewise, a company has a nature, and thank god it does. Its nature is to produce economic value and wealth for its shareholders. We don’t trust it to follow good public policy. We trust it to follow that objective. Public policy is designed to make it profitable for them to behave in a way that serves the objectives of public policy, in this case the objective of an open, neutral network. It makes it more profitable for them to behave than to misbehave.

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An interesting analysis of Apple and competing distributor and network business models appears on “Going Private.” Agree or disagree? Agree with about half.  

One point that I thought worth noting; the allegedly pernicious influence of MBAs laden with theory. This runs counter to the classic free-market (Austrian-school-influenced) model of the entrepreneur taking advantage of local knowledge and designing from the bottom up. But the latter could be, in the long run, a better description only of the more successful contenders, the ones whose actions are rewarded. At the starting line, a more motley crew will be assembled, and markets will not necessarily bring them  to account immediately or in an obvious way for mediocrity. But they will do so eventually. By comparison, regulators may never bear any consequences for poor decisions at all.



Over at Ars, I have an in-depth look at the White House’s email troubles. The administration is either spectacularly incompetent or going out of its way to avoid complying with the law:

When the Bush administration took office, it decided to replace the Lotus Notes-based e-mail system used under the Clinton Administration with Microsoft Outlook and Exchange. The transition broke compatibility with the old archiving system, and the White House IT shop did not immediately have a new one to put in its place.

Instead, the White House has instituted a comically primitive system called “journaling,” in which (to quote from a recent Congressional report) “a White House staffer or contractor would collect from a ‘journal’ e-mail folder in the Microsoft Exchange system copies of e-mails sent and received by White House employees.” These would be manually named and saved as “.pst” files on White House servers…

These deficiencies were repeatedly brought to the attention of White House systems administrators. In 2002 and 2003, they attempted to retrofit the old, Lotus Notes—based archiving system to work with the new Exchange-based email system. When this effort failed, they awarded a contract to Booz Allen Hamilton to design a new system, and to Unisys to implement it. According to McDevitt, the new system was set up and configured during 2005 and was “ready to go live” in August 2006. But the White House CIO, Theresa Payton, reportedly aborted the project in late 2006, citing perceived inadequacies with the system’s performance and its ability segregate official presidential correspondence from political or personal materials. McDervitt resigned in protest soon afterwards.

Payton claims that the White House is working on yet another archiving system. But until it’s completed—and it’s now looking increasingly unlikely that it will be operational before the end of the administration—the White House will lack an automated system for complying with the requirements of federal law.

Julian didn’t like Tom Sydnor’s paper on Lessig either. In particular, he went back and looked up the sections in Code in which Lessig ostensibly expressed sympathy for Communism. Here’s the rest of the story:

We learn that Lessig wrote, in the first edition of his book Code, of his “impulse to sympathize” with those on the left who are “radically skeptical” about using property rights in personal information to protect privacy. We do not learn that the long quotation that follows is Lessig’s summary of an anti-market view of which he declares himself “not convinced.” (Lessig originally endorsed a property right in personal data; he has since altered his view, and now supports treating Web sites’ privacy policies as binding contracts.)

Sydnor similarly presents selective quotations from a passage in Code where Lessig describes his impression of life in communist Vietnam as surprisingly free and unregulated in certain respects. Lessig’s point is that despite a formal ideology of state omnipotence, the lack of an effective architecture of control leaves many ordinary Vietnamese relatively unfettered in their day-to-day interactions; institutional structure often determines reality more powerfully than official philosophy. Possibly Lessig is mistaken about modern Vietnamese life, but Sydnor, in what seems like a willful misreading, deploys the anecdote to depict Lessig as a disciple of Ho Chi Minh.

And of course yesterday Mike pointed out that Lessig’s point about property rights and DDT wasn’t as outrageous as Tom seemed to think. These examples strikes me as a serious problem. One of the basic obligations of any scholar is to present one’s opponents’ quotes fairly and in context. If a scholar writes “I’m sympathetic to view X, but ultimately I find the arguments for it unconvincing,” it’s extremely misleading for someone to quote the first half of the sentence without mentioning the second half.

Likewise, Julian suggests that Tom’s summary of Fisher’s proposal leaves something to be desired:
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Dennis McCauley of Gamepolitics.com takes on that issue today in a column:

In the United States, the FBI tracks annual statistics on police officer slayings as well as assaults on police officers. I compared these figures to the various release dates for the three major GTA console game releases to date (GTA III, GTA Vice City, GTA San Andreas) and plotted the whole thing on the chart below. It’s a bit like the well-known video games vis-a-vis juvenile crime graph created by Duke Ferris of GameRevolution a few years back, although with a much narrower focus.The FBI statistics portray a much different picture than that painted by critics like Thompson and Grossman.

In the chart, I’ve plotted FBI figures for police officers feloniously killed (blue line) and police officers assaulted (red line, listed in thousands). As can be seen, police officer murders peaked at 70 in 1997 (i.e., four years before GTA III) and again in 2001. GTA III was released in late October that year, so if the game caused that year’s spike, it would have had only two months in which to do so. (also, the 2001 figures don’t count the 72 officers lost when the World Trade Centers collapsed).

The chart shows that since GTA III was released police killings have been trending downward to a low of 48 in 2006. Although the FBI has not yet posted 2007 numbers, the National Law Enforcement Officers Memorial Fund lists 68 police officers as having been shot to death in 2007. But it’s worth pointing out that while there may have been a spike in police slayings last year, there was no corresponding GTA release. There hasn’t been a new Grand Theft Auto console title issued since San Andreas in October, 2004.

I’ve commented more on these issues in my essay on “Why hasn’t violent media turned us into a nation of killers?”

Our friends at the Progress and Freedom Foundation have released a paper by PFF’s new copyright guru about Larry Lessig, Free Culture, and whether libertarians should take them seriously. Since the paper is framed as a response to my recent post on Lessig’s work, I suppose I should offer some thoughts on the subject.

I have to say that I found the paper disappointing. I’ve frequently said I wished more libertarians took Lessig’s ideas about copyright seriously, and so I’m generally happy to see libertarian organizations writing about Lessig’s work, even if they do so critically. But it seems to me that a basic principle of good scholarship is that you start with a good-faith interpretation of your opponent’s position and then proceed to explain the flaws in fair-minded way. The goal isn’t to give your readers the worst possible impression of your opponent, but to help your readers to better understand the opponent’s arguments even as you refute them. That doesn’t appear to be what Tom did. Rather, he appears to have read through Lessig’s rather substantial body of work (3 books and numerous papers) and cherry-picked the words, phrases, sentences, and paragraphs that, when taken in isolation, give the impression that Lessig is (as Tom puts it) a “name-calling demogogue.”

This makes it awfully hard to know where to begin in analyzing Tom’s arguments, such as they are. For example, consider the first paragraph after the introduction:

Disputes about whether Lessig “demonizes” property owners are easily resolved. He does so incessantly. Scholars are supposed to be disinterested, balanced and thoughtful. Lessig is an name-calling demagogue: In just one law-review article, he calls those who fail to agree with him sheep, cows, unimaginative, extreme, stupid, simplistic, blind, uncomprehending, oblivious, pathetic, resigned, unnoticing, unresisting, unquestioning, and confused—”most don’t really get it.”

Now, he does indeed use all of those words in “The Architecture of Innovation.” In some cases, they’re even applied to people he disagrees with. But they’re sprinkled through a 15-page paper, and to judge how demagogic they are, you really have to see the full context to see who, exactly, he’s referring to with each of these words. To take just the first example—sheep—what Lessig actually says is that he frequently encounters a sheep-like stare from his audience when he asks the questions “what would a free resource give us that controlled resources don’t? What is the value of avoiding systems of control?” He’s clearly not calling everyone who disagrees with him sheep, he’s making a point—valid or not—about peoples’ failure to understand a set of questions that he thinks are important.
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Headline of the Day

by on April 29, 2008 · 9 comments

Hans Reiser is fscked: jury delivers guilty verdict

Ars certainly has a history of running edgy headlines, but this takes things to a new level.

Update: As PJ points out, fsck is a Unix file system utility, and Reiser did work on Linux file systems.