Keeping politicians' hands off the Net & everything else related to technology
I’ve got a new piece up at Ars taking a look at three amicus briefs in the Bilski case, which could give the Federal Circuit the chance to rein in patents on non-physical “inventions” like software, business methods, financial strategies, tax planning advice, etc.
At Matthew Yglesias’s suggestion, I’m perusing the terms of the US-Colombia trade deal. As Matt points out, a lot of this stuff has little or nothing to do with trade. I’ve already pointed out the problems with including provisions in “free trade” agreements dictating changes in Colombia’s copyright and patent laws. But it seems to me that’s far from the only non-trade-related provision in the agreement. For example:
An Open and Competitive Telecommunications Market: Users of Colombian telecom networks are guaranteed reasonable and nondiscriminatory access to the network. This prevents local firms from having preferential or “first right” of access to telecom networks. U.S. phone companies obtained the right to interconnect with Colombian dominant suppliers’ fixed networks at nondiscriminatory and cost-based rates.
Now, it seems to me that when we force American telecommunications companies to provide “the right to interconnect” with competitors “at nondiscriminatory and cost-based rates,” many libertarians denounce it, with good reason, as “infrastructure socialism.” I don’t know anything about Colombia’s telecommunications market. Perhaps they’ve got a less competitive telecommunications market than we do, or maybe I’m misreading the details of the proposal. But the broader point is that this has absolutely nothing to do with trade, free or otherwise. Whether or not mandatory interconnection is good policy, a trade agreement seems like a lousy forum for deciding on it. At most, the rules should say that any interconnection policies Colombia might enact should apply equally to domestic and foreign firms, but it sounds like they’re going considerably beyond that.
There’s lots of other stuff in here that has nothing to do with free trade. There are the now-obligatory environmental and labor standards. There’s “Trade Capacity Building,” which appears to involve giving US taxpayer dollars to Colombian businesses. Even the stuff I’m inclined to think are good ideas on the merits, such as “Fair and Open Government Procurement,” don’t seem to have any obvious relationship to the standard arguments for free trade. If the Colombian government wants to squander Colombian taxpayer money on inefficient domestic contractors, that’s not a good thing but it’s also not a trade barrier.
Of course, there are some genuine trade liberalizations in there, and they may be significant. But as special interests pile more and more unrelated provisions into these agreements, I think it becomes harder and harder to expect people to support them simply based on fundamental arguments about comparative advantage. Whatever arguments might be made in favor of “state-of-the-art protections for digital products such as U.S. software, music, text, and videos” or “programs for small and medium-sized enterprises and farmers, and programs for improvements in transportation infrastructure and telecommunications,” they certainly have little to do with anything David Ricardo wrote.
This essay by Josh Chasin over at the MediaPost’s Metrics Insider Blog is the best piece I’ve read on behavioral marketing & privacy in a long time. I like this analogy, in particular:
Let’s say you are a tall, dashing, smartly dressed Chief Research Officer at a major Internet audience measurement company, and you walk into Nordstrom’s. A sales clerk you recognize comes up to you and says, “Hey, your wife’s birthday is coming up in a few weeks, and we just got in those sweaters she likes. Should I put a couple of them away for you in her size and color?” Now let me ask you. Does this hypothetical Chief Research Officer perceive this to be: (a) an egregious violation of his privacy, causing him to immediately rush home and write his state assemblyman; or (b) another example of Nordstrom’s world-class customer service? If you answered (b), then you’re tracking with me so far.
So how come if this exact same thing happens on the other side of the screen, it stops being outstanding customer service and turns into a violation of privacy?
Great question! And yet some over-zealous privacy advocates make this stuff out to be the coming endtimes and call for comprehensive regulation using scare tactics and twisted logic, as Chasin notes:
If Big Brother barges into your home at midnight and takes you away because someone doesn’t like the books you’ve been reading, that’s an invasion of your privacy (and way worse.) But if the ads you see on Yahoo are increasingly relevant to your life, that’s not an invasion of privacy. That’s just the digital version of that nice lady at Nordstrom’s. Let’s not confuse the two.
Exactly.
The Washington Post was ecstatic. Having won six Pulitzer Prizes for journalism, it featured the news on the front page of yesterday’s edition, accompanied by a photo of applauding Post staff. And they certainly deserved credit – the half-dozen prizes were the second-most won by a newspaper since the annual awards began in 1917.
But one thing was missing in the Post photo: a newspaper. There’s a computer screen in the foreground, being watched by the applauding staffers. And a TV in the background. But there wasn’t an actual newspaper to be seen.
The photo says a lot about the changing face of journalism, and the rise of electronic media. The traditional newspaper is quickly losing ground to newer forms of communication, notably the Internet. Only two weeks ago, the Newspaper Association of America reported that print advertising had plummeted in 2007 by almost 10 percent, the largest one-year drop ever.
But despite these changes, the Pulitzer remains largely a paper-and-ink affair, limited mostly to traditional newspapers. To its credit, the Pulitzer committee did change the rules a few years ago, allowing online journalism to be considered. Thus, a number of winning entries have had significant online components. But – except for the two“breaking news” categories – the rules still require that stories appear in print as well as online.
This documentary, “The Truth According To Wikipedia,” debuted on Dutch television last Friday. Lots of divergent views here.
Communications Daily ($) cited my recent post comparing Google’s limited objectives for the 700 MHz auction with the expansive objectives it outlined to the Federal Communications Commission last summer, and it included the following reaction to my comments from Richard Whitt of Google:
Whitt said in response that Haney had misread his company’s comments from last summer. “We consistently have argued that the open access license conditions adopted by the FCC would inject much-needed competition into the wireless apps and handset sectors, but would not by themselves lead to new wireless networks,” he said Monday. “Only if the commission had adopted the interconnection and resale license conditions we also had suggested — which the agency ultimately did not do — would we have seen the potential for new facilities-based competition.”
Another way to look at this is if there wasn’t any potential for new facilities-based wireless competition without the interconnection and resale license conditions Google wanted, why would Google have submitted bids for the spectrum which it might have won and had to pay for?
I do agree that prior to the FCC’s adoption of two of the four open platform principles Google proposed the company consistently premised its commitment to participate in the auction on the FCC adopting all four principles. I also agree Google was clear that it believed all four principles were necessary to promote competition.
Then it participated in the auction anyway.
Over at Ars, I’ve got a write-up of Rescuecom, an important trademark case that was heard by the Second Circuit last week. I shamelessly ripped off James Grimmelmann’s excellent first-hand write-up of the exchange:
Trademark law is designed to protect consumers by preventing companies from selling their products under false pretenses. The core issue of the Rescuecom case is whether choosing a competitor’s trademark as an advertising keyword is likely to confuse consumers. Rescuecom has argued that Google profits from consumer confusion by obscuring the distinction between organic search results and paid advertising. Google, in contrast, compares its advertisements to a grocery store that stocks a generic product on a shelf alongside its brand-name competitor—a use that courts have consistently upheld as legal.
Last week, the case was heard by a three-judge panel of the Second Circuit. Law professor James Grimmelmann was there, and he gives a thorough summary of the exchange. The argument focused heavily on dueling analogies. Google’s lawyers invoked the grocery-store-shelf analogy and suggested that the situation was akin to handing out flyers in front of a competing restaurant.
Rescuecom’s lawyer countered that there was no concept of “next to” on the Internet. He argued that a consumer entering “Rescuecom” into Google’s search box was expecting to be taken to Rescuecom-owned sites, not to those of Rescuecom’s competitors or critics. He preferred to analogize Google’s actions to a scenario in which a listener calls directory assistance and is read a paid advertisement for a competitor. A judge also brought up a scenario in which a customer asks a druggist for Advil and is given Aleve instead.
My favorite analogy, though, comes from this comment in the Ars forums:
IIRC there was a case like this regarding Pepsi and Coke, where one of them was going around threatening restaurants who provided the competitor’s product when the customer asked for their product. Except that the recommended alternative was for the restaurant to instead tell the patron, “we haven’t got Coke, how about Pepsi instead?” Which seems to be much closer to what Google is doing. When you type in rescuecom and hit “I’m feeling lucky” then you get rescuecom.com, not rescuecomcompetitor.com or any other advertisers. When you hit search, you get a long list of results like you’re supposed to. Some of them are competitors and critics as well they should be.
I don’t know what case this might be referring to, but it’s an excellent example for Google’s argument. Not only is this exactly the “ask for Advil, get Aleve” scenario, but there’s no question that both Pepsi and the restaurant are profiting from it. And I’m reasonably certain that this is not regarded as trademark infringement. So if Google does the automated equivalent—search for Rescuecom, get an ad for Geek Squad—I don’t see why that would be different.
I have generally agreed with Clay Shirky (and Tim) that micropayments either don’t work very well or just aren’t needed given other pricing options / business models. But my eBay activity over the past few years has made me reconsider. I was going back through some of my past eBay purchases tonight and leaving feedback and I realized that I have made dozens of micropayments in recent months for all sorts of nonsense (stickers, posters, small car parts, Legos for my kids, magazines, and much more). Most of these items are just a few bucks, and many don’t even break the 99-cent threshold. I think that qualifies as micropayment material. And certainly I am not the only one engaged in such micro-transactions because there are countless items on eBay for a couple of bucks or less.
Of course, just because micropayments and PayPal work marvelously in the context of the used junk and trinkets we find on eBay, that does not necessarily mean they will work as effectively for many forms of media content. Advertising or flat user fees are probably still preferable since consumers don’t like the hassles associated with micropayments. Still, they seem to be working fine on eBay, so it would be wrong to claim that they never work online.
Cass Sunstein has another new book out. The University of Chicago law school professor is so insanely prolific that it seems every time I finish reading one of his new books, a new title by him lands in my inbox. Seriously, either this man does not sleep or he is a robot. Anyway, his latest book is entitled, Nudge: Improving Decisions About Health, Wealth, and Happiness, and it was co-authored with Richard Thaler, an economist also residing at Univ. of Chicago.
Their thesis is that people sometimes make bad choices (no duh, right?), but that with a little helpful prodding (i.e., “the nudge”) we mere mortals might make better decisions. The way we get there is through what they call “libertarian paternalism.” Here’s how their official book page describes it: Continue reading →
I’m a big critic of the Bush administration’s foreign policy, so I was excited to see this plan, endorsed by 42 House candidates, to end the war. However, I was annoyed to find that this was part of the plan:
The lack of impartiality and skepticism on the part of the news media allowed administration claims to go unchallenged, and denied the American public a full examination of the arguments for and against going to war.
The consolidation of ownership of news organizations means that it doesn’t take long for a beltway- centric “conventional wisdom” to take shape. Due to the limited number of media outlet owners, this conventional wisdom is repeated over and over, through a variety of outlets…
This legislation would require the FCC to include greater public participation when changing regulations related to broadcast ownership, to do studies on the impact of such rule changes, and to establish an independent panel on increasing the representation of women and minorities in broadcast media ownership.
On one level, this is just empty grandstanding. Requiring “greater public participation” and writing more studies just isn’t going to have a significant effect on whether Fox News’s commentators are biased in favor of wars. As James and Adam have pointed out ad nauseum on this blog, the FCC’s decision-making process on media ownership has been glacial, and the media have been de-consolidating as well as consolidating.
But I think this proposal would actually be more worrying if it did have teeth. When you boil it down, what this plank of their plan is saying is that the bulk of the media reached a conclusion that these candidates didn’t agree with, and so they want to enact legislation that will shift the media conversation in a direction they would find more congenial. Liberals have been justifiably upset that Pres. Bush appears to be stacking the CPB with right-wingers in order to exert right-ward pressure on NPR and PBS. The same principle works the other way: if liberals don’t like the way the media have been covering the War in Iraq, the answer is not to get the federal government involved. The fact that 42 candidates for Congress frame the issue this way should concern everyone who takes freedom of the press seriously.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
