I find myself delighted, but also mildly disappointed, by a short speech making the rounds on the Internets, given by Amelia Anderstotter, Swedish Member of the European Parliament representing the Pirate Party. For its forcefulness, the speech misses a key distinction about which advocates of freedom, which I think members of the Pirate Party mean to be, should be very clear.

It’s a delightful speech because it’s a crisp rejection of the authoritarian forces that seek to control communications. In doing so, they hinder the development of culture. The woman delivering the speech is equal parts young, serious, and articulate. I reject authoritarianism, too, and I work to eliminate or hold at bay many of the same forces as Anderstotter, so that civil society can organize itself as it will.

I’m nonplussed, though, by the line that has gotten the speech so much attention.

“I would like to paraphrase George Michael from I think 1992,” she says. “‘Fuck you, this is my culture.’ And if copyright or telecommunications operators are standing in the way, I think they should go.'”

In one sense, the bracing language works. It is what generated a lot of interest in her words. But the context of the quote does not work as well. You see, when confronted with paparazzi photos showing him engaged in late-night cruising at a London park, Michael said, “Are you gay? No? Well then Fuck Off! Because this is my culture and you don’t understand it.” That is vituperation when confronted about arguably unhealthy behavior. It is not the conformity-rejecting line you might have expected in “Freedom! ’90,” presaging Michaels’ dispute with Sony over the release of Listen Without Prejudice Vol. 2.

One should certainly be free to act as Michael did among a community of consenting adults, and to reject criticism as he did. But when a speaker’s job is to persuade skeptics, one might choose an example of contempt for authority that the audience can easily embrace. With this quote, Anderstotter didn’t seat her rejection of authority firmly in logic and justice.

That’s a narrow point about influence, but the real weakness of the speech is in its internal logic. In the name of freedom, she calls for authoritarian regulatory interventions on private-sector network operators.

“[V]ery few top political figures in the world have acknowledged,” she says, that free speech and human rights protection “will require regulatory intervention on some private sectors.”

And later: “The control over communities and the ability to shape them must be with the communities themselves. Infrastructure must be regulated to enable that ability and such autonomy.”

Note how her use of passive voice hides the actor. Infrastructure “must be regulated” to achieve her agreeable goals. By whom? Perhaps one imagines beneficent gods fixing things up, but the regulations she seeks will almost certainly come from “the Governments and … public officials and lobbyists” that she says she wishes would fuck off.

A coherent system of rights does not have internal conflicts. If your freedoms come at the expense of someone else’s, you haven’t sorted out yet what “freedom” is.

Anderstotter is on the right track in many respects. Timid though the debate may be from her perspective, the scope and duration of copyright protection is again controversial among U.S. libertarians and conservatives. But her rejection of authoritarianism is an implicit embrace of authoritarianism at the same time.

With a little sorting out, she and the Pirate Party could get it right. Until then, the cultural reference she brings to mind for me is “meet the new boss, same as the old boss.”

Over at the IPI Policy Blog, Tom Giovanetti has a new post about “Copyright and the GOP” reflecting on the recent brouhaha over Derek Khanna’s retracted Republican Study Committee policy brief on copyright. I’m afraid Giovanetti’s post is a good example of exactly what’s wrong with the Republican status quo thinking and rhetoric on copyright.

The post begins by explaining why the GOP has “historically been strong supporters of copyright protections”:

Markets simply don’t work without property rights. You can’t have contracts, or licensing, if you don’t have clear and enforceable property rights. ALL business models, not just “new” business models, rest on property rights.

Further, because the GOP believes in innovation, copyright is a natural fit, because copyright incentivizes and encourages the creation, distribution and promotion of new information. The alternative to copyright isn’t free information, but less creation, less widely distributed and marketed.

Do you see what just happened there? The implication is that Khanna in his memo, or those of us who would like to see copyright reform, don’t think there should be copyright at all or don’t think that copyright is property. That’s just not the case. In his memo, for example, Khanna explicitly proposes up to 46 years of protection for creative works. That is copyright, and that is property, and it would allow for contracts and licensing and for markets to work.

When folks say that copyright reformers are anarchists who don’t believe in property rights, don’t buy it. It’s an inaccurate and unfair characterization.

Giovanetti goes on to write,

That’s why it was jaw dropping to see a paper appear on the Republican Study Committee (RSC) website that was infused with much of the rhetoric and many of the assumptions of the CopyLeft movement. When an RSC paper is praised on the Daily Kos website, you have to wonder what’s going on.

Rather than address the merits of Khanna’s memo, Giovanetti instead tries to make Khanna guilty by association. If some on the left agree with your ideas, the argument seems to go, then there must be something wrong with your ideas. This tribal mentality is exactly what the GOP should be trying to expunge right now. Isn’t it more likely that if your up-and-coming intellectuals agree with other thinkers on the left, then there may in fact be a problem worth addressing? It’s like saying John McCain or Marco Rubio are liberal radicals because they would agree with Ted Kennedy on immigration.

It gets worse. Giovanetti argues that there’s nothing to see here since the Copyright Office regularly reviews exemptions:

In the Information Age, copyright and patents have become focal points of much criticism. And it is both appropriate and necessary to review current laws and standards to ensure they reflect changes in the marketplace and in technology. Accordingly, the Copyright Office regularly releases new exceptions to copyright that reflect those changes.

Boy, how far we’ve come when it is argued that the GOP should be in favor of an unelected regulatory bureaucracy deciding what are our rights. As Matt Schruers recently wrote,

While I’m at peace with this, it continues to baffle me that more conservatives are not skeptical of expanding intellectual property. What is regulation, if not when bureaucrats hold an administrative rulemaking and issue a triennial rule dictating how individuals must conduct their affairs with respect to media they have already purchased? That sounds a lot like regulation to me.

What is regulation, if not when bureaucracies dispense exclusive entitlements to special petitioners intentionally designed to restrict competition, because it serves the broader purpose of incentivizing the pursuit and disclosure of particular creative activity? This is what our IP law does.

Don’t fall for it folks. Copyright reform is perfectly compatible with a strong belief in property rights and markets. More than that, opposition to our bloated copyright system that serves special interests in Hollywood at the expense of the public is in fact the true conservative and libertarian position.

After more than a year of complaining about Google and being met with responses from me (see also here, here, here, here, and here, among others) and many others that these complaints have yet to offer up a rigorous theory of antitrust injury — let alone any evidence — FairSearch yesterday offered up its preferred remedies aimed at addressing, in its own words, “the fundamental conflict of interest driving Google’s incentive and ability to engage in anti-competitive conduct. . . . [by putting an] end [to] Google’s preferencing of its own products ahead of natural search results.”  Nothing in the post addresses the weakness of the organization’s underlying claims, and its proposed remedies would be damaging to consumers.

FairSearch’s first and core “abuse” is “[d]iscriminatory treatment favoring Google’s own vertical products in a manner that may harm competing vertical products.”  To address this it proposes prohibiting Google from preferencing its own content in search results and suggests as additional, “structural remedies” “[r]equiring Google to license data” and “[r]equiring Google to divest its vertical products that have benefited from Google’s abuses.”

Tom Barnett, former AAG for antitrust, counsel to FairSearch member Expedia, and FairSearch’s de facto spokesman should be ashamed to be associated with claims and proposals like these.  He better than many others knows that harm to competitors is not the issue under US antitrust laws.  Rather, US antitrust law requires a demonstration that consumers — not just rivals — will be harmed by a challenged practice.  He also knows (as economists have known for a long time) that favoring one’s own content — i.e., “vertically integrating” to produce both inputs as well as finished products — is generally procompetitive. Continue reading →

James D. Miller, Associate Professor of Economics at Smith College and author of Singularity Rising: Surviving and Thriving in a Smarter, Richer, and More Dangerous World, discusses the economics of the singularity, or the point of time in which we’ll either have computers that are smarter than people or we will have significantly increased human intelligence.

According to Miller, brains are essentially organic computers, and, thus, applying Moore’s law suggests that we are moving towards singularity. Since economic output is a product of the human brain, increased brainpower or the existence of computers smarter than humans could produce outputs we cannot even imagine.

Miller goes on to outline what the singularity could look like and what could derail our progress towards it.

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In a New York Times op-ed this weekend entitled “You Can’t Say That on the Internet,” Evgeny Morozov, author of The Net Delusion, worries that Silicon Valley is imposing a “deeply conservative” “new prudishness” on modern society. The cause, he says, are “dour, one-dimensional algorithms, the mathematical constructs that automatically determine the limits of what is culturally acceptable.” He proposes that some form of external algorithmic auditing be undertaken to counter this supposed problem. Here’s how he puts it in the conclusion of his essay:

Quaint prudishness, excessive enforcement of copyright, unneeded damage to our reputations: algorithmic gatekeeping is exacting a high toll on our public life. Instead of treating algorithms as a natural, objective reflection of reality, we must take them apart and closely examine each line of code.

Can we do it without hurting Silicon Valley’s business model? The world of finance, facing a similar problem, offers a clue. After several disasters caused by algorithmic trading earlier this year, authorities in Hong Kong and Australia drafted proposals to establish regular independent audits of the design, development and modifications of computer systems used in such trades. Why couldn’t auditors do the same to Google?

Silicon Valley wouldn’t have to disclose its proprietary algorithms, only share them with the auditors. A drastic measure? Perhaps. But it’s one that is proportional to the growing clout technology companies have in reshaping not only our economy but also our culture.

It should be noted that in a Slate essay this past January, Morozov had also proposed that steps be taken to root out lies, deceptions, and conspiracy theories on the Internet.  Morozov was particularly worried about “denialists of global warming or benefits of vaccination,” but he also wondered how we might deal with 9/11 conspiracy theorists, the anti-Darwinian intelligent design movement, and those that refuse to accept the link between HIV and AIDS.

To deal with that supposed problem, he recommended that Google “come up with a database of disputed claims” or “exercise a heavier curatorial control in presenting search results,” to weed out such things. He suggested that the other option “is to nudge search engines to take more responsibility for their index and exercise a heavier curatorial control in presenting search results for issues” that someone (he never says who) determines to be conspiratorial or anti-scientific in nature.

Taken together, these essays can be viewed as a preliminary sketch of what could become a comprehensive information control apparatus instituted at the code layer of the Internet. Continue reading →

As you likely know by now, the Republican Study Committee published a briefing paper critical of copyright, but then later pulled it down claiming the memo had not received adequate review. Some have suggested that IP-industry pressure may have led to the reversal. I hope we will find out in due time whether the paper was indeed reviewed and approved (as I suspect it was), and why it was removed. That said, I think what this take-down likely shows is a generational gap between the old, captured, and pro-business parts of the Republican Party and its pro-market and pro-dynamism future.

I also hope that this dust-up sparks a debate within the “right” about our bloated copyright system, and so it’s propitious that in a couple of weeks the Mercatus Center will be publishing a new book I’ve edited making the case that libertarians and conservatives should be skeptical of our current copyright system. It’s called Copyright Unbalanced: From Incentive to Excess, and it is not a moral case for or against copyright; it is a pragmatic look at the excesses of the present copyright regime and of proposals to further expand it. The book features:

  • Yours truly making the Hayekian and public choice case for reform
  • Reihan Salam and Patrick Ruffini arguing that the GOP should take up the cause of reforming what is now a crony capitalist system
  • David Post explaining why SOPA was so dangerous
  • Tim Lee on the criminalization of copyright and the a use of asset forfeiture in enforcing copyright
  • Christina Mulligan explaining that the DMCA harms competition and free expression
  • Eli Dourado calculating that the system we have today likely far exceeds what we need in order to offer authors an incentive to create
  • Tom Bell suggesting five reforms for copyright, including returning to the Founders’ vision of what copyright should be

Conservatives and libertarians, who are naturally suspicious of big government, should be skeptical of an ever-expanding copyright system. They should be skeptical of the recent trend toward criminal prosecution of even minor copyright infringements, of the growing use of civil asset forfeiture in copyright enforcement, and of attempts to regulate the Internet and electronics in the name of piracy eradication. I think our movement is very close to seeing that copyright reform is not just completely compatible with a respect for property rights, but a limited-government project. We hope our book will help make the case.

Also, the Cato Institute will be hosting a lunchtime book forum on December 6. Tom Bell and I will present our views and Mitch Glazier of the Recording Industry Association of America will respond. Please RSVP to attend and tell your colleagues.

On Friday evening, I posted on CNET a detailed analysis of the most recent proposal to surface from the secretive upcoming World Conference on International Telecommunications, WCIT 12.  The conference will discuss updates to a 1988 UN treaty administered by the International Telecommunications Union, and throughout the year there have been reports that both governmental and non-governmental members of the ITU have been trying to use the rewrite to put the ITU squarely in the Internet business.

The Russian federation’s proposal, which was submitted to the ITU on Nov. 13th, would explicitly bring “IP-based Networks” under the auspices of the ITU, and would in specific substantially if not completely change the role of ICANN in overseeing domain names and IP addresses.

According to the proposal, “Member States shall have the sovereign right to manage the Internet within their national territory, as well as to manage national Internet domain names.”  And a second revision, also aimed straight at the heart of today’s multi-stakeholder process, reads:  “Member States shall have equal rights in the international allocation of Internet addressing and identification resources.” Continue reading →

Here’s a presentation I delivered on “The War on Vertical Integration in the Digital Economy” at the latest meeting of the Southern Economic Association this weekend. It outlines concerns about vertical integration in the tech economy and specifically addresses regulatory proposals set forth by Tim Wu (arguing for a “separations principle” for the tech economy) & Jonathan Zittrain (arguing for “API neutrality” for social media and digital platforms). This presentation is based on two papers published by the Mercatus Center at George Mason University: “Uncreative Destruction: The Misguided War on Vertical Integration in the Information Economy” (with Brent Skorup) & “The Perils of Classifying Social Media Platforms as Public Utilities.”

Here’s a presentation I’ve been using lately for various audiences about “Cronyism: History, Costs, Case Studies and Solutions.” In the talk, I offer a definition of cronyism, explain its origins, discuss how various academics have traditionally thought about it, outline a variety of case studies, and then propose a range of solutions. Readers of this blog might be interested because I briefly mention the rise of cronyism in the high-tech sector. Brent Skorup and I have a huge paper in the works on that topic, which should be out early next year.

Also, here’s a brief video of me discussing why corporate welfare doesn’t work, which was shot after I recently made this presentation at an event down in Florida. Continue reading →

By Berin Szoka and Ben Sperry

You’d think it would be harder for government to justify regulating the Internet than the offline world, right? Wrong—sadly. And Congress just missed a chance to fix that problem.

For decades, regulators have been required to issue a cost-benefit analysis when issuing new regulations.  Some agencies are specifically required to do so by statute, but for most agencies, the requirement comes from executive orders issued by each new President—varying somewhat but each continuing the general principle that regulators bear the burden of showing that each regulation’s benefits outweigh its costs.

But the FCC, FTC and many other regulatory agencies aren’t required to do cost-benefit analysis at all.  Because these are “independent agencies”—creatures of Congress rather than part of the Executive Branch (like the Department of Justice)—only Congress can impose cost-benefit analysis on agencies.  A bipartisan bill, the Independent Agency Regulatory Analysis Act (S. 3486), would have allowed the President to impose the same kind of cost-benefit analysis on independent regulatory agencies as on Executive Branch agencies, including review by the Office of Information and Regulatory Affairs (OIRA) for “significant” rulemakings (those with $100 million or more in economic impact, that adversely affect sectors of the economy in a material way, or that create “serious inconsistency” with other agencies’ actions).

Republican Senators Rob Portman and Susan Collins joined with Democrat Mark Warner in this important cause—yet the bill has apparently died during this lame duck Congress. While some public interest groups have attempted to couch their objection on separation-of-powers grounds, their ultimate objection seems to be with subjecting the regulatory state’s rulemaking process to systematic economic analysis—because, after all, rigor makes regulation harder.  But what’s so wrong with a cost-benefit analysis?  Continue reading →