The Washington Post has a good editorial on Sen. Specter’s proposal (which he defended here) that would effectively legalize the NSA spying program and others like it:
Under the Supreme Court’s decades-old understanding, presidential power is at its lowest ebb when the president is acting contrary to the will of Congress, and at its zenith when he is using his own powers in concert with legislative authorization. Right now, to conduct warrantless surveillance domestically Mr. Bush must act at the very least in sharp tension with FISA. Under Mr. Specter’s bill, however, the legislature would be explicitly acknowledging an alternative source of authority for snooping. It would thereby legitimize not only whatever the NSA may now be doing but lots of other surveillance it might dream up.
The bill would also allow–but not require–the administration to seek warrants for entire surveillance programs, based on the flimsiest evidence against a small subset of the population that would be subject to the surveillance. The result is that consistent with the bill, the administration could either ask or not ask judicial permission to monitor individuals or large groups of people, based on evidence or no evidence. Or it could simply act outside the law entirely.
An optional warrant requirement is a contradiction in terms. If a president is willing to flout the clear warrant requirements of FISA, what reason is there to think he’d pay any attention at all to a warrant requirement that’s so riddled with loopholes?
Hat tip: Derek
There are some interesting comments that you might have missed in response to James Gattuso’s post last week about VoIP quality and network neutrality. Mike Masnick takes him to task for reading more into the Brix report than is merited.
Brix CTO Kaynam Hedayat notes that his company doesn’t take a position on neutrality regualtions, but he added these clarifications:
– Based on comments from the testyourvoip user community more than half the tests were run for pre-qualification purposes (prior to signing up for VoIP). In those cases the users did not know if they had problems or not prior to running the tests.
– Close to one million tests were conducted for this study.
– The types of impairments and degradation factors that we analyzed point to network congestion. We are further analyzing the data to understand the location of congestion (core, last mile, etc.).
– Via the testyourvoip portal we measured and continue to measure “end-to-end” VoIP quality on the internet.
– The tests are conducted between the user’s desktop to one of seven locations across the globe as selected by the user. The seven locations are connected to the internet via high BW connections without any impairments (they are monitored).
Cog linked to this Ed Felten post questioning whether QoS was a good argument for neutrality regulation. Felten concludes that it’s not–that in many cases simply throwing more bandwidth at the problem is a better solution. For what it’s worth, I find Cog and Felten’s position pretty persuasive. Guaranteeing QoS is a difficult engineering problem that’s likely to require rolling out a lot of new and expensive networking hardware across the network, if it can be made to work at all. Simply building out more capacity is likely to be a more cost-effective option, and it has the salutary side effect of increasing peak bandwidth in addition.
On the other hand, Felten, Cog, and I could be wrong. It may be that QoS can be deployed in a cost-effective manner, and that non-QoS network management techniques simply won’t give us the quality of service we need for high-bandwidth, interactive applications. Which is why we should leave network owners with some freedom to experiment. No one has a monopoly of wisdom on network design, and if anyone did, it certainly wouldn’t be Congress or the FCC!
There’s an interesting discussion going on at Freedom to Tinker about the interaction among the DMCA, DRM, and contract law. After David Robinson painted a stark dichotomy between legal restrictions on the freedom to tinker (such as the DMCA) or legally mandatory tinkering rights, I pointed out a middle ground: that the law should neither restrict the freedom to tinker nor give that freedom special legal status.
Cory Doctorow had a response that I think is worth highlighting:
I think that an important point is often missed in discussions of this sort: that a marketplace works best when both opponents and proponents of business-models engage in discourse and attempt to sway customers towards or away from a market.
So while I favor the abolition of the DMCA and the clarification of copyright law to improve the tinkerer’s lot, I likewise believe that it is useful and good to warn people that in a no-DMCA world, it would *still* be a bad idea to contract out of your freedom to tinker, and to agitate against the contracts under discussion here.
There’s an important distinction between the two positions: On the one hand, I think that the law regarding the DMCA should be changed–this is a political/legal response I want to see from government. On the other hand, I have arguments I’d like to publicize arguing against accepting DRM even in the absence of the DMCA, but those arguments don’t call for a legal or governmental response, they merely seek to change a potential customer’s mind.
Imagine that there was a law against spearmint gum. I might want this law repealed. I might also want to convince you that you should buy spearmint gum and not cinnamon.
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Corey Doctorow has a good article on the DMCA on Information Week:
The DMCA makes the kind of reverse-engineering that’s commonplace in most industries illegal in copyright works. For example, in the software industry, it’s legal to reverse-engineering a file-format in order to make a competing product. The reason: The government and the courts created copyright to provide an incentive to creativity, not to create opportunities to exclude competitors from the marketplace.
Reverse engineering is a common practice in most industries. You can reverse-engineer a blender and make your own blades, you can reverse-engineer a car and make your own muffler, and you can reverse-engineer a document and make a compatible reader. Apple loves to reverse-engineer–from Keynote to TextEdit to Mail.app, Apple loves reverse-engineering its competitors’ products and making its own competing products.
But the iTunes/iPod product line is off-limits to this kind of reverse-engineering. No one but Apple can authorize an iTunes/iPod competitor, and Apple’s not exactly enthusiastic about such authorization –the one major effort to date was the stillborn Motorola ROKR phone, which was so crippled by ridiculous Apple-driven restrictions that it barely made a ripple as it sank to the bottom of the cesspool of failed electronics.
Doctorow makes a good point about Apple’s own reverse engineering. I wonder if Apple believes it was guilty of adopting “the tactics and ethics of a hacker” when it reverse engineered Power Point in order to allow Keynote users to interoperate with Power Point users. Or for that matter, when they bundled Samba, a networking suite that was built by reverse-engineering Microsoft’s file and print sharing protocols, into Mac OS X. Maybe those products ought to be illegal as well.
Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. The Wall Street Journal reported yesterday that Friendster has been granted a patent on social networking software. (Not surprisingly, Techdirt beat the Journal by three weeks) The patent in question is # 7,069,308, “System, method and apparatus for connecting users in an online computer system based on their relationships within social networks.” Here’s a sample from the “BRIEF DESCRIPTION OF THE INVENTION”:
An invitation system allows users to invite friends or acquaintances to join the system. Invitations may be sent, for example, by e-mail. The invited friend or acquaintance may accept the invitation, and then become a user of the system, as a `friend` of the inviting user. The new user is prompted to provide descriptive data and the relationship data for friends or acquaintances who they would like to join the system. It is a unique and important feature of the invention that the invitation system (as well as related communication systems within the invention) allows two users to confirm that they are “friends”, and therefore become designated as such in the system.
Users in the system further have the ability to provide information about one another. For example, one user might write a positive comment about a second user’s personality. In one implementation, the second user may accept or reject display of the comment. Further, in this implementation, any other users who are connected to the second user through any number of acquaintance pathways may see the comment as part of the “descriptive data” about the second user.
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It appears that the US government is tip toeing toward reliquishing control of the Internet, and The Register explains in a long and intersting article. I thought these comments were particularly interesting:
It was apparent from the carefully selected panel and audience members that the internet – despite its global reach – remains an English-speaking possession. Not one of the 11 panel members, nor any of the 22 people that spoke during the meeting, had anything but English as their first language.
While talk centered on the future of the internet and its tremendous global influence, the people that sat there discussing it represented only a tiny minority of those that now use the internet every day. Reflections on the difficulty of expanding the current internet governance mechanisms to encompass the global audience inadvertently highlighted the very parochialism of those that currently form the ICANN in-crowd.
When historians come to review events in Washington on 26 July 2006, they will no doubt be reminded of discussions in previous centuries over why individual citizens should be given a vote. Or, perhaps, why landowners or the educated classes shouldn’t be given more votes than the masses.
On some level, this is obviously right. The Internet is now used by a great many non-Americans, and it’s understandable that they’d like some input into ICANN’s decisions. But I think the “democratic” frame for thinking about the issue is somewhat wrongheaded. The Internet is not a democratic country, and ICANN isn’t its government.
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To wrap this series up, let me recap the reasons that platform monopolies are a bad idea:
Advocates of platform monopoly rights argue that such rights increase the profitability of new platform creation, thereby encouraging more R&D spending and innovation.
Technological systems are subject to “gains to interoperability,” analogous to the gains from trade.
Firms have an incentive to engage in “platform protectionism,” which reduces the surplus created by network effects but can increase the share of that surplus captured by the firm.
Often, very little of the value of a platform can be explained by the design decisions of the firm that created it.
A platform owner will tend to under-license its platform due to the inability of intermediaries to capture the full value created by the platform. This problem gets worse as the number of intermediaries increases, inefficiently “flattening” the development structure.
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I got a first-hand lesson in the pace of technological change when I was writing my paper on the DMCA. I wrote the first draft last July, went through Cato’s editing process from October to January, and then the paper was released in March.
Between the initial writing of the paper and its publication 9 months later, the online video marketplace underwent a revolution. When I was writing last July, I described the market for streaming video as stagnant, dominated by three mutually incompatible, vertically integrated video platforms controlled by Apple, Microsoft, and Real, respectively. By press time, YouTube had burst onto the scene.
The remarkable thing about YouTube is that from a technical perspective, there’s nothing especially remarkable about it. Instead of inventing their own video streaming format, as Apple, Microsoft, and Real had done, they built a video player atop Adobe’s popular Flash technology. Flash was originally designed as a platform for lightweight web animations, but it has evolved into a full-featured application platform. Luckily for YouTube, Flash was already installed on the vast majority of PCs and Macs, meaning that YouTube didn’t have to go to the trouble of getting its software installed on millions of PCs.
Here, I would argue, is an example of a case where we had at too many video platforms that tried to do too much. Had Microsoft, Apple, and Real been able to agree on a unified video format, and allowed other third parties to develop for that format, it’s likely that streaming video would have taken off much earlier. But because each company was more focused on making sure its format prevailed than on ensuring consumers had the best possible video experience, the streaming video market stayed in a kind of stalemate for close to a decade.
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David Berlind elaborates on the sticky situation “Plays for Sure” vendors will find themselves in if Microsoft launches a device that isn’t Plays for Sure compliant:
Short term, Microsoft will have something by the holidays that, from a specification point of view, compares tit-for-tat with one or two devices. But Sasse as well as his contemporaries are in denial if they think this isn’t going to impact their business over the long run. Microsoft, of course, has to do whatever it thinks it must do to keep Apple from eating its lunch in the world of multimedia entertainment which is what Apple is doing, at least on some fronts). On the other hand, this is exactly the sort of risk that companies licensing such foundational technologies (as DRM) take when those technologies are proprietary and why, if at all possible, it makes sense to hedge that risk with product R&D around something more open. If I were Sasse, right about now, I’d be picking up the phone and calling Sun to find out more about the Open Media Commons and Project DReaM. It may not be perfect. But at some point, businesses and users need to get a better handle on how much of their strategies, budgets, and their investments in technologies (eg:users buying music) they’re willing to subject to decision making processes over which they have no control (eg: those of the vendors of certain proprietary technologies).
There’s a cruel irony here. I’ve always thought the “plays for sure” label was cynical, given that it prevented consumers from playing their music on the world’s most popular MP3 player. But here we see DRM potentially screwing over not just users, but also companies that foolishly deployed DRM technology controlled by a potential competitor.
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On Sunday I offered one reason that platform monopolies might not stimulate as much innovation as the ideal case would suggest.
Here’s another reason: R&D spending often has diminishing returns. The surplus generated by a successful new platform (DOS/Windows, x86, iTunes/iPod, etc) provides an enormous windfall to the company that creates it–a windfall that may be totally out of proportion to the amount of money the company spent developing the platform. The first version of Microsoft’s DOS operating system, was called QDOS (for quick and dirty OS) and was licensed from another company for a small sum. It’s not at all obvious that there’s any connection between the amount of R&D Microsoft did on early versions of DOS and the large subsequent profits they made.
If we had changed public policy in the 1970s to halve or double the long-run rewards to creating a PC operating system, it’s not obvious it would have changed the outcome for Microsoft one bit. For many technological categories, the winning platform tends to be made by the firm that is in the right place at the right time. Above a certain point, increased R&D spending is likely to show diminishing returns. It only costs so much to develop a microchip, an iPod, or an operating system. If the return on doing so is 10 or 100 times the cost, we don’t
want firms to spend money beyond the point of diminishing returns.
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