2013 — Page 16

Three cheers for Rep. Lofgren’s new cellphone unlocking and anti-circumvention bill

by Jerry Brito on May 9, 2013 · 130 comments

Earlier this year, Ryan Radia and I spilled a lot of ink on these pages critiquing the various “cell phone unlocking” bills that were introduced in reaction to a successful White House petition. Our assessment of these bills was that they ranged from timid to unhelpful. Their biggest vice was that they were generally band-aids and temporary fixes aimed solely at cell phones and not the underlying problem of the DMCA’s anti-circumvention provision.

Today, I’m happy to see Rep. Zoe Lofgren introduced a bill that would not only fix cell phone unlocking, but also goes a long way in addressing the DMCA Section 1201’s fundamental problems. Quite simply, the Unlocking Technology Act of 2013 makes the DMCA’s anti-circumvention provisions applicable only in cases where the person circumvents a digital lock in order to infringe copyright. So, ripping a DVD in order to distribute a film without permission on BitTorrent would still be illegal, but ripping the same DVD in order to watch the film on your iPad would be OK. This is good sense and good policy.

The bill also would allow the manufacture, sale, and import of anti-circumvention tools now prohibited under DMCA 1201. Sounds nefarious, but in reality what this means is that, for example, Linux users may for the first time get a legal way to play DVDs on their computers. And making tools that help the blind read ebooks won’t get you in trouble with the FBI.

Finally, the bill requires NTIA to conduct a study and publish a report looking at whether the economic impact of the DMCA’s anti-circumvention provisions, and to look at whether Section 1201 should be further amended or even repealed. Yes folks, this bill uses the word “repeal” in its text.

Congrats to Rep. Lofgren and her bi-partisan co-sponsors, Reps. Massie, Eshoo, and Polis, for showing that common sense still has a shot on the Hill.

130 comments

President Obama’s New E.O.: Open Data, Not Government Transparency

by Jim Harper on May 9, 2013 · 1 comment

There’s a powerful irony lurking underneath the executive order and OMB memorandum on open data that the White House released in tandem today: We don’t have data that tells us what agencies will carry out these policies.

It’s nice that the federal government will work more assiduously to make available the data it collects and creates. And what President Obama’s executive order says is true: “making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.” GPS and weather data are the premier examples.

But government transparency was the crux of the president’s 2008 campaign promises, and it is still the rightful expectation of the public. Government transparency is not produced by making interesting data sets available. It’s produced by publishing data about the government’s deliberations, management, and results.

Today’s releases make few, if any, nods to that priority. They don’t go to the heart of transparency, but threaten to draw attention away from the fact that basic data about our government, including things as fundamental as the organization of the executive branch of government, are not available as open data.

Yes, there is still no machine-readable government organization chart. This was one of the glaring faults we found when we graded the publication practices of Congress and the executive branch last year, and this fault remains. The coders who may sift through data published by various agencies, bureaus, programs, and projects can’t sift through data reflecting what those organizational units of government are.

Compare today’s policy announcements to events coming up on Capitol Hill in the next two weeks.

On Thursday next week (May 16), the House Committee on Oversight and Government Reform will host a “DATA Demonstration Day” to illustrate to Congress and the media how technology may cut waste and improve oversight if federal spending data is structured and transparent. (That would include my hobby-horse, the machine-readable federal government organization chart.) We’ll be there demo-ing how we at Cato are adding data to the bills Congress publishes.

On May 22nd, the House Administration Committee is hosting its 2013 Legislative Data and Transparency Conference. This is an event at which various service providers to the House will announce not just policies, but recent, new, and upcoming improvements in publication of data about the House and its deliberations. (We’ll be there, too.)

The administration’s open data announcements are entirely welcome. Some good may come from these policies, and they certainly do no harm (barring procurement boondoggles–which, alas, is a major caveat). But I hope this won’t distract from the effort to produce government transparency, which I view as quite different from the subject of the new executive order and memorandum. The House of Representatives still seems to be moving forward on government transparency with more alacrity.

1 comment

A response to Steve: It still doesn’t sit well

by Jerry Brito on May 9, 2013 · 3 comments

Over at Freedom to Tinker, Steve Schultze has a response to my Reason article about Craigslist suing its competitors. Steve expresses some surprise that I would suggest that we might want to recognize a new property right since I have been so critical of the excesses of our current IP regime. Let me take a stab at reconciling that seeming paradox.

First, I should say I’m sympathetic to Steve’s position, which he shares with many others, and which may well be right. I wrote the Reason article more than anything to provide some balance to what I saw as a knee-jerk reaction in the blogosphere to the Craigslist ruling. I really didn’t see anyone giving Craigslist’s claims a fair shake (probably because the company is acting hypocritically given the public profile they have cultivated). That’s why in the article I’m ambivalent about whether Craigslist should have any remedy, and why I don’t make the case that trespass to chattels is the right approach. The point is that neither am I convinced that it’s clearly the wrong approach, or that Craigslist should clearly not be waging this suit.

That said, let me suggest that my thinking on this is not at odds with my thinking on copyright. Steve chides me for saying that maybe there’s something to Craigslist’s claims because what its competitors are doing doesn’t “sit well.” He says that “the notion that something doesn’t ‘sit well’ is not necessarily a good indicator that one can or should prevail in legal action,” and he’s right, which is why I don’t make that claim in the article. He goes on to admit that “to be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn’t seem right.” And that was my point. The fact that what Craigslist’s competitors are doing doesn’t sit well, I suggest, should give us a hint that this isn’t as open-and-shut a case as some have made it out to be, and that perhaps we should take a closer look.

I’m glad Steve brings up the common law. One of the central critiques I have made about copyright as a property right is that it did not develop at common law, and is instead a creature of statute. The fact that copyright is created by politicians guessing about the future (and influenced by special interests), rather than courts deciding actual cases and controversies, is what in large part leads to its excesses. I am much less skeptical of property rights that emerge at common law over time after an evolutionary process of trial and error, and as Steve points out, this process usually begins when a court is presented with a novel question that doesn’t “sit well.”

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3 comments

Tiered Pricing in Broadband ≠ Monopoly

by Brent Skorup on May 8, 2013 · 5 comments

I plan to write more about broadband competition and the impact of Google Fiber but in the meantime, there is a New York Times article on the subject that I’ll briefly address.

The author, Eduardo Porter, misdiagnoses why tiered pricing in broadband exists, giving readers the impression that only monopolies price discriminate:

That means that in most American neighborhoods, consumers are stuck with a broadband monopoly. And monopolies don’t strive to offer the best, cheapest service. Rather, they use speed as a tool to discriminate by price — coaxing consumers who are willing to pay for high-speed broadband into more costly and profitable tiers.

Continue reading →

5 comments

Is Craigslist behaving like a bully—or legitimately protecting its business interests?

by Jerry Brito on May 7, 2013 · 127 comments

peace_purplemag Over at Reason I take a look at the recent controversy around Craigslist suing some smaller competitors who have been using its listings data without permission. While I agree with most commentators that neither copyright nor CFAA claims make sense in this case, I depart from what seems to be the conventional thinking in arguing that it’s not so clear that Craigslist should have no remedy:

>[I]t’s pretty easy to see why Craigslist should care that others are building on top of and extending its service. What makes the company so valuable is its strong network effect. People go to Craigslist because that’s where the people are. If it loses that, it loses its business.

>PadMapper aggregates and presents listings not just from Craigslist, but from other apartment listing sites as well, including Apartments.com and Rent.com. This is great for users because they only need go to one site to browse all the listings across multiple databases. It’s bad for Craigslist, however, because it makes it less of a focal site. Such aggregators make it less important that an apartment be listed at Craigslist specifically as long as it is in the aggregated list.

>PadMapper also offers listings of its own listings through its PadLister service. This means that PadMapper relies on the network effects that Craigslist has developed in order to draw in an audience, and then promotes and sells its own listing service to that audience. While that business model is certainly innovative, and may not violate copyright, it doesn’t sit well, either.

>Craigslist disrupted the newspaper industry by decimating traditional classifieds. It did this by offering a better alternative to its competitors that attracted consumers away from newspapers. Craigslist didn’t copy newspaper ads to jumpstart its operation, just as Facebook didn’t jumpstart its network by copying over MySpace accounts. That’s true innovation: taking command of the network effect by offering a superior product. So shouldn’t we expect the same from new entrants in the classifieds space?

Check out the whole thing here.

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W. Patrick McCray on visioneers

by Jerry Brito on May 7, 2013 · 0 comments

W. Patrick McCray, author of The Visioneers: How a Group of Elite Scientists Pursued Space Colonies, Nanotechnologies, and a Limitless Future, tells the story of these modern utopians who predicted that their technologies could transform society as humans mastered the ability to create new worlds.

Believing that the term “futurist” was too broad, McCray coined the term visioneers to describe those who not only had ambitious visions for future technology, but who carried out detailed and extensive scientific and engineering work to bring those visions into fruition, and who actively worked to promote their ideas to a wider public.

McCray focuses on the works of Gerard O’Neil and Eric Drexler, detailing their early contributions as visioneers and their continuing impact particularly in the fields of space colonization and nanotechnology. He also identifies modern-day visioneers and their work.

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What to expect at the WTPF

by Eli Dourado on May 6, 2013 · 0 comments

Next week, I’ll be in Geneva for the 2013 World Telecommunication/ICT Policy Forum, better known by the acronym WTPF-13. This is the first major ITU conference since the WCIT in December, and the first real test of whether what some are calling the “post-WCIT era” really exists, and if so, what it means. For those just now tuning in, the WCIT was a treaty conference in Dubai in which some ITU member states pushed hard to make elements of the Internet subject to intergovernmental agreement, resulting in the refusal of 55 countries to sign the treaty. I published a retrospective account of my experience at the WCIT at Ars Technica.

The WTPF will be different than the WCIT in several important ways: Continue reading →

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Do Not Track, Silver Bullets, and Long-Term Privacy Protection

by Adam Thierer on May 2, 2013 · 0 comments

Today over at the International Association of Privacy Professionals (IAPP) Daily Dashboard blog, I have a guest post entitled, “Let’s Not Place All Our Eggs in the Do Not Track Basket.” The essay builds on my Senate Commerce Committee testimony last week by arguing that:

If there’s one lesson I’ve learned in twenty-one years of covering information technology policy, it’s that there are no simple silver-bullet solutions to complex issues like online safety, hate speech, spam, cybersecurity, data breaches or digital privacy. Problems such as these demand a layered, multifaceted approach that incorporates many solutions, the first among these being education and awareness-based efforts.

I continue on to explain why that means we should be cautious about placing too much faith in privacy techno-fixes like Do Not Track, which won’t likely be any more successful than past silver bullet efforts. (Note: Justin Brookman of CDT will be offering a counterpoint to my essay next week on the IAPP blog. I look forward to seeing what he has to say. He also testified alongside me in the Senate last week.)

By the way, for those of you not familiar with the IAPP, it is “the largest and most comprehensive global information privacy community and resource, helping practitioners develop and advance their careers and organizations manage and protect their data. More than just a professional association, the IAPP provides a home for privacy professionals around the world to gather, share experiences and enrich their knowledge.” In my opinion, the IAPP is doing amazing work and deserves the attention of anyone who cares about the future of privacy and privacy policy. I strongly recommend you check out their excellent site and explore all the important resources they provide and other things they do.

Anyway, if you are interested in the issues discussed in my IAPP guest post, you might also want to check out some of the related essays down below the fold: Continue reading →

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Internet Analogies: Twice as Many Americans Lack Access to Public Water-Supply Systems than Fixed Broadband

by Fred Campbell on May 2, 2013

If broadband Internet infrastructure had been built to the same extent as public water-supply systems, more than twice as many Americans would lack fixed broadband Internet access.

After abandoning the “information superhighway” analogy for the Internet, net neutrality advocates began analogizing the Internet to waterworks. I’ve previously discussed the fundamental difference between infrastructure that distributes commodities (e.g., water) and the Internet, which distributes speech protected by the First Amendment – a difference that is alone sufficient to reject any notion that governments should own and control the infrastructure of the Internet. For those who remain unconvinced that the means of disseminating mass communications (e.g., Internet infrastructure) is protected by the First Amendment, however, there is another flaw in the waterworks analogy: If broadband Internet infrastructure had been built to the same extent as public water-supply systems, more than twice as many Americans would lack fixed broadband Internet access. Continue reading →

Alex Tabarrok on innovation

by Jerry Brito on April 30, 2013 · 0 comments

Alex Tabarrok, author of the ebook Launching The Innovation Renaissance: A New Path to Bring Smart Ideas to Market Fast discusses America’s declining growth rate in total factor productivity, what this means for the future of innovation, and what can be done to improve the situation.

Accroding to Tabarrok, patents, which were designed to promote the progress of science and the useful arts, have instead become weapons in a war for competitive advantage with innovation as collateral damage. College, once a foundation for innovation, has been oversold. And regulations, passed with the best of intentions, have spread like kudzu and now impede progress to everyone’s detriment. Tabarrok outs forth simple reforms in each of these areas and also explains the role immigration plays in innovation and national productivity.