June 2008

“I know a smart business decision when I see one — choosing open standards is a very smart business decision indeed. No citizen or company should be forced or encouraged to choose a closed technology over an open one.”

The above proclamation is from Neelie Kroes, the EU’s Competition Commissioner, as reported in the New York Times. And it seems odd–perhaps even an abuse of the position–for a regulator charged with enforcing competition rules to advocate for one business model over another.

First of all, the world is not so simple as “open” or “closed.” Most software has both open and closed elements, and thus falls along a linear spectrum of being more open or more closed (or proprietary). But politicians, we know, will often eschew nuance and speak in simple rhetoric. And what rhetoric it is!  No citizen should be forced or ENCOURAGED to choose a “closed technology” — this is more befitting of the Free Software Foundation or any NGO, just not a government’s chief antitrust official.

On a related point, I’d like to refer you to a blog post by Noah Clements, who is a guest on the ACT blog. He’s an attorney and former computer programmer, and he recently discussed why governments should not choose technology standards:

First, it is simply too easy to bet on the wrong horse.  A prominent developer, John Sowa, summarized this idea as the “law of standards”:  “Whenever a major organization develops a new system as an official standard for X, the primary result is the widespread adoption of some simpler system as a de facto standard for X.”

Second, and a point that flows from the first, even when you choose the best option available, that option will not be the best for long, nor will it be the best solution for all problems.

I invite you to read the rest of his post.

I haven’t had a chance to interview Tim yet, but I assume he has ceased posting Bea Arthur porn on Usenet (as reported by PJ) because of several major ISPs’ capitulation to the New York Attorney General and agreement to cut off access to Usenet. Declan McCullagh has the most thought-through write-up.

I appeared on the BBC early yesterday morning (BBC-time) to discuss concerns with this. I didn’t know about Tim’s draconian action or I surely would have raised it as an example of the unfortunate fall-out from the preemptive censorship some ISPs have agreed to at the behest of the AG.

The Arizona legislature has passed a bill to refuse participation in the REAL ID Act. The House vote was 51 to 1.

Today I released a press statement about the Federal Communications Commission’s hearing today on early termination fees for customers who cancel their mobile phone, cable or Internet service contracts early. Quickly after the statement was released, I got reasoned response from Ken Werner, a Senior Analyst at Insight Media.

As reasoned as Ken’s response was, however, it just doesn’t make much sense. Ken argues that, ” bundling of phone and wireless services does not enhance competition; it suppresses it.” He goes on to say that “Unbundling of phone and service sales would create a far more varied and vibrant set of offerings.”

But this simply isn’t true. By forcing unbundling—that means banning subsidized phones—we’re taking away consumer choice. Being able to buy a phone outright and then purchase a plan on a month-to-month but if Ken is right and “Google, the Android open platform, the Open Handset Alliance, and (maybe) even Verizon are moving in that direction,” then there is no reason to force a no-contract model on the wireless industry.

The way to true offer a “more varied and vibrant set of offerings” is to allow the market to continue to operate as it is. Because of exceptional hardware like the iPhone, Ken is likely right that Verizon and other carriers will open up to selling plans separately from phones, but consumers should still be able to buy basic phones that are subsidized through long-term phone plan commitments. Banning the latter option decreases choice, rather than expanding it as Ken claims.

It may take times for American business models to shift, but ultimately it will result in more choice than markets like Europe, where choice is limited by contract negotiation. To say that banning contract options will increase the variety of options is simply a contradiction in terms.

Copyright Podcast

by on June 11, 2008 · 25 comments

I neglected to mention that I’m on Cato’s Daily Podcast today discussing the themes of my copyright essay. Just to be clear, the complete home-recorded Golden Girls VHS collection Caleb references is purely hypothetical. I don’t collect copyright-infringing videos, and if I did they wouldn’t be on VHS, nor would they consist of Golden Girls re-runs.

Update: I guess it’s possible people would have liked a link

Congrats to Fred Von Lohmann and EFF as well as Joe Gratz and his colleagues at Keker & Van Nest, for their victory in the promo CD copyright case I wrote about last summer:

Like other record labels, UMG distributes free CDs to radio stations and music reviewers in the hopes of drumming up publicity. The CDs come stamped with the label “promotional copy, not for sale.” Based on this notice and the fact that the copies were given away rather than sold, the labels argue that these “promo CDs” remain the property of the labels and are only leased to recipients for their personal use.

California resident Troy Augustino makes a living selling various merchandise, including promo CDs, on eBay. UMG sued him in May for copyright infringement, claiming that it had merely licensed the CDs rather than transferring ownership and that Augustino was therefore committing copyright infringement by reselling them.

The fundamental issue in the case is the First Sale Doctrine, which says that when a copyright holder sells a copy of a CD, the new owner of the CD is entitled to give or sell that copy to someone else without getting the copyright holder’s permission. This is the principle that makes libraries and used book stores possible. It was first articulated by the Supreme Court in 1908 and has since been codified into statute.

Fred describes the ruling:

In its ruling, the district court found that the initial recipients of “promo CDs” own them, notwithstanding “not for resale” labels. The court rejected the notion that these labels create a “license,” concluding that the CDs are gifts. According to the opinion, “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” (The court also found that federal postal laws relating to “unordered merchandise” establish that promo CDs are gifts to their recipients.)

I’m nominally on vacation this week so I won’t have time to read the decision for a while, but it looks like a great ruling.

We did a podcast on the case and its implications, featuring Fred and Randy Picker of the University of Chicago law school, last summer.

Washington Post columnist Harold Meyerson has a truly outrageous editorial in today’s Post comparing Sam Zell, the investor who just took the Tribune Co. private, to a domestic terrorist. Meyerson suggests that Zell belongs behind bars for his attempt to restructure the Tribune’s struggling newspaper business:

On Oct. 1, 1910, a bomb set by James McNamara, an operative of the Iron Workers union, then embroiled in a ferocious dispute with the Los Angeles Times, blew up the Times building, killing 21 pressmen. McNamara was arrested the following April, convicted and later sentenced to life in prison. He died in San Quentin in 1941.

The question for today is: Would a similar sentence be appropriate for Sam Zell? Zell, for those of you fortunate enough not to follow news of the newspaper business, is the Chicago real estate magnate who last year purchased the Tribune Co., which owns the Times, the Chicago Tribune and a number of smaller papers. At the rate he’s going, he’s well on his way to accomplishing a feat that McNamara didn’t even contemplate: destroying the L.A. Times.

This is absurd and insulting on its face since Zell can hardly be equated with someone who engaged in an act of violent terrorism that killed people. Attempting to restructure a struggling business is hardly on par with that. But let’s ignore Meyerson’s ridiculous analogy and instead just look at the facts about what Zell is doing and why he is doing it. Meyerson is apparently oblivious to the fact that the newspaper industry finds itself facing something akin to a marketplace perfect storm. Advertisers are flocking to alternative platforms. Classified ads are being cannibalized by CraigsList and Google. Readers have discovered myriad other media platforms and forms of content to occupy their time. And policymakers still won’t give newspapers an ounce of regulatory relief that might let them restructure their business by partnering with others in their local communities who might help them stay afloat. [I thoroughly documented all of this bad news in part 7 of my ongoing “Media Metrics” series, “An Uncertain Future for Newspapers.” ]

Meyerson is undeterred by these pesky facts and instead shifts all the blame of downsizing at Tribune papers to Zell. Has Sam Zell gone too far in suggesting that papers may need to get slimmer, trim staff, find a way to run more ads, and so on? Some would say yes, and I might even agree with them to some extent. You can’t have great papers without great journalists and editors, after all. And if the whole paper is full of nothing by ads and recycled content, no one will read it.

Others, however, would argue that Zell isn’t going far enough fast enough to retool and restructure for a digital future. Regardless, despite Meyerson’s attempt to paint him as a pariah, Zell is only doing what most industry analysts have suggested must be done–at least in some measure–to keep newspapers alive going forward. And make no doubt about it, the evidence (which is presented down below the fold) makes it clear that newspapers are in serious trouble. Instead of offering even one constructive solution, however,  Meyerson inappropriately channels his rage about the demise of the daily paper at a man who is doing his best to make sure that the daily paper will even continue to exist ten years from now. Is that really akin to an act of terrorism? I think not, and shame on Harold Meyerson for suggesting as much.

Incidentally, what I found somewhat ironic about Meyerson’s piece is that he is ranting about what he regards as the over-zealous effort of an individual owner to restructure a private company. (Again, Zell took Tribune private not that long ago). And yet, that model—individual or family ownership of newspaper vs. public / shareholder ownership—is what most media critics claim is part of the salvation for media markets! That is, many media critics constantly complain about “Wall Street pressures” or “shareholder influences” on newspapers and claim that individual or family ownership shelters papers from unreasonable marketplace demands (namely, the need to make money). Well, that theory was always highly dubious as we now see quite vividly with Tribune and other media properties as they go private. Private owners end up taking most of the same steps publicly-owned enterprises do in an attempt to restructure or save their struggling business.
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Time Warner, Verizon, and Sprint will restrict access to tens of thousands of Newsgroups in order to stem illegal child pornography as part of an agreement with New York State Attorney General Andrew Cuomo announced yesterday. Although ISPs have no obligation to provide newsgroup access, and there are plenty of alternative methods for users to browse Usenet discussion groups, the agreement raises serious Constitutional questions.

The agreement is supposedly “voluntary,” but this doesn’t necessarily resolve all First Amendment concerns. Hans Bader, CEI’s Counsel for Special Projects, posted a good overview on the Constitutional implications of the New York announcement over at OpenMarket.org:

“In truth, the settlement blocking access to newsgroups is not really “voluntary.”  It’s the coercive result of threats of litigation from the New York Attorney General’s office.  Supposedly “voluntary” settlements can constitute government regulation that violates the constitution.   The Supreme Court has said that even a State’s “contractual condition” is subject to constitutional scrutiny (See South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984)), and federal appeals courts have observed that the fact that a state official and a business “have entered into an agreement does not necessarily insulate it from scrutiny under” the Constitution.  (See Automated Salvage Transport, Inc. v. Wheelabrator Ent’l Sys. Inc., 155 F.3d 59, 78 (2d Cir. 1998)).  And a “voluntary agreement” incorporated into a consent decree can constitute state regulation that is preempted by federal law, as the Supreme Court observed in 1981.  (Ridgway v. Ridgway, 454 U.S. 46, 47, 53 (1981)).

This isn’t the first time Andrew Cuomo has pressured firms to engage in online censorship. Back in October 2007, I discussed how Facebook “voluntarily” agreed to censor user content to reduce the chances that minors would encounter obscene images.

Mr. Cuomo seems awfully effective at persuading providers to curtail user speech–perhaps he made an offer the ISPs couldn’t refuse.

Two contrasting examples of different paths to take for Internet Safety: beefing up our criminal laws vs. imposing pseudo-verification requirements on social networking sites.

First, the good news–a Virginia appellate court upheld the commonwealth’s law criminalizing online solicitation. The law makes it illegal to send sexual content to a minor online with the intent to engage the minor in criminal sexual conduct offline.

Enhancing existing or creating new criminal laws is the crux of a model legislation strategy NetChoice has been promoting before state legislators. It’s a way to direct an understandable legislative urge to protect children toward a productive, meaningful end. And to avoid the bad news – age verification.

Last week the Attorney General for Washington, Rob McKenna, called for sites like Facebook and MySpace to use credit cards as a way to prove identity. Now, age verification has been a pet project of AGs for over two years now. I’ve written on why age verification won’t work to keep kids safe, and so too has Adam Thierer (see his most recent post). I mean, really, don’t sexual predators have credit cards too?

As I mentioned, Cato Unbound this month is focusing on the challenges technological changes are creating for copyright law. My first contribution to the discussion is now online. I find myself basically persuaded by Rasmus’s argument that the war on file sharing will fail for the same reason that the wars on drugs, gambling, prostitution, and other vices will fail. Personal copying is becoming too cheap and easy for the law to effectively control what goes on in the privacy of peoples homes.

It’s a conclusion I’ve reached with some reluctance. I’m personally not comfortable with peer-to-peer file sharing and if I thought there was a practical way to prevent it I’d probably be in favor of it. But it has become increasingly clear that stopping file sharing is futile, and the strategies used to curb file sharing have grown more and more illiberal. If we have to choose between file sharing or a police state, and I think we do, then I choose file sharing.

But it’s important that we don’t over-state the consequences of a de facto legalization of non-commercial file sharing:

It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true. The starkness with which the copyright debate is often framed reflects a misunderstanding of the function copyright served in the 20th century. Copyright is commonly conceived as a system of restrictions on the copying of creative works. But until recently, it would have been more accurate to describe copyright as governing the commercial exploitation of creative works. From this perspective, the inevitable legalization of non-commercial file sharing looks less like a radical departure from copyright’s past, and more like an incremental adjustment to technological change. It will require the rejection of some misguided policy developments of the last decade, to be sure, but in a sense it will simply restore the common-sense principles of 20th-century copyright law.

In my essay, I argue that copyright law will continue to be important for the music, movie, software, and other content industries. And I contend that there will still be plenty of opportunities for people to make a living producing creative works.