Larry Lessig calls out those of us who support fair use (FU) but criticize network neutrality regulations (NN):
There is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations”–each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.
Fair use is an affirmative defense against claims of copyright infringement. As such, it is
only asserted in cases where an alleged infringer has already been dragged into court. There aren’t fair use bureaucrats roaming the country looking for publishers violating their customers’ fair use rights. Fair use simply carves out a sphere of autonomy around individuals and their personal lives. When fair use atrophies, the result is excessive legal meddling in the lives of ordinary people.
Where did I learn that? From Mr. Lessig. One of my favorite stories about copyright law run amok, which I originally encountered in Free Culture, is the story of Jon Else, a documentary filmmaker who happened to have 4 seconds of The Simpsons playing on a TV in the background of one of his shots. Fox threatened to sue him if he didn’t pay $10,000 for permission to include the clip. In response, Else digitally edited the clip out of the shot.
That’s clearly nuts. And it is, I think, a sign of excessive government regulation of the use of copyrighted works. True, Else would probably have won in court, but doing so would have cost thousands of dollars in legal fees, as well as likely holding up the release of his movie. A stronger fair use doctrine would have given Else the confidence that such a lawsuit would have been immediately thrown out of court.
The problem is that copyright law meddles too much in trivial cases like Mr. Else’s. A stronger fair use doctrine would have a deregulatory effect, reducing copyright’s scope and leaving a bit more of life outside the reach of lawyers and bureaucrats.
Those of us who support fair use and oppose neutrality regulation are being perfectly consistent: our primary concern is excessive state power over private activities. The courts telling Mr. Else he can’t have 4 seconds of
The Simpsons playing in the background of his documentary would be unnecessary government meddling. In my opinion, so would the courts telling AT&T how to configure their routers. I don’t see a “consistency problem” here.
Moby thinks we should regulate the Internet. If the telecom policy experts at the Christian coalition didn’t persuade you that neutrality regulation is a good idea, then technology whizzes like R.E.M., Q-Tip, the Indigo Girls, Jill Sobule, Wilco, Trent Reznor of Nine Inch Nails, the Roots, and the Dixie Chicks certainly will!
Meanwhile, the pro-regulation side continues to demonstrate its incredible talent for doublespeak:
Net Neutrality is the long-held principle that ensures small music blogs and independent news sites open just as easily on people’s computers as large corporate sites. Companies like AT&T are spending millions lobbying Congress to pass legislation that critics charge would set up a discriminatory tollbooth system on the information superhighway. The proposed legislation would allow Internet providers to decide which Web sites work best on people’s computers based on who pays them the most, favoring large corporations with deep coffers while marginalizing everyday people, community groups and small businesses.
AT&T, of course, is not “lobbying Congress to pass legislation” about neutrality regulation. Rather, they are
opposing new regulations on the subject. It takes a fair amount of rhetorical contortionism to take the posture of the beleaguered defender of the status quo, when you are, in fact, the one pushing new regulations. For example, Moby (no doubt reading talking points prepared by others) says there will be “a huge public backlash” if Congress “sells out the Internet.” If so, it will be one of the strangest backlashes in history. Most backlashes are spontaneous outpourings of anger against an action the public dislikes. But this “backlash” would be a carefully stage-managed reaction to Congress’s decision to leave things as they are. Of course, given the way the “Save the Internet” crowd is describing the issue, most of the people participating in the “backlash” wouldn’t know they were the ones lobbying for new legislation.
Frankly, I can’t blame Moby and company for being alarmed. I’d be alarmed too if all I heard was MoveOn’s version of the story.
David Levine points out a post from James DeLong last week in which he identifies a real problem but comes up with a peculiar diagnosis:
Once of the risks of the P2P culture’s ethics–“it’s our music and we have a right to steal it”–is that consumers will end up worse off. Content creators, to obtain any return on their investment of time, energy, and money, will be forced to partner with particular hardware makers or distributors and tightly tether content to the specific channel. The result would be a loss of flexibility and interoperability.
You mean, like, the iTunes Music Store, which won’t work with non-Apple devices? Or Google’s video store, CinemaNow, Moviebeam, and MovieLink, none of which will easily play videos on an ordinary HDTV?
Every DRM scheme works by “tightly tethering” content to a specific platform. A few of them, such as CSS and Microsoft’s Windows Media, at least allow some third party licensees under the tent, but every single one of them contributes to “a loss of flexibility and interoperability.” DRM is the reason that you can’t play DVDs on an iPod, or iTunes songs on high-end stereo systems.
It’s not clear to me what DeLong thinks we ought to
do about the growing balkanization of media technologies. As far as I can see, we’re currently trying all of the anti-piracy measures he supports: the courts are shutting down Grokster and company, we have the DMCA on the books, and the recording industry is suing thousands of individuals engaged in file sharing. If, after all of that, we see continued balkanization of media technologies, might that be a sign that our approach is wrong?
Larry Lessig proudly points out that network neutering isn’t a left-right issue. His evidence? The Christian Coalition has signed on to the pro-NN coalition.
Why?
Mrs. Combs said, “Under the new rules, there is nothing to stop the cable and phone companies from not allowing consumers to have access to speech that they don’t support. What if a cable company with a pro-choice Board of Directors decides that it doesn’t like a pro-life organization using its high-speed network to encourage pro-life activities? Under the new rules, they could slow down the pro-life web site, harming their ability to communicate with other pro-lifers – and it would be legal. We urge Congress to move aggressively to save the Internet–and allow ideas rather than money to control what Americans can access on the World Wide Web. We urge all Americans to contact their Congressmen and Senators and tell them to save the Internet and to support ‘Net Neutrality’.”
I can only say that whoever talked Mrs. Combs into making this statement did a hell of a sales job. Too bad the pitch was massively misleading. Let’s count the ways that this scenario is ridiculous:
In the first place, no one seriously expects broadband ISPs to restrict traditional websites. Websites are sufficiently low-bandwidth that current connection speeds are more than enough to transmit them to consumers. The worry is over high-bandwidth, latency-sensitive next generation services like VoIP and video on demand.
Ed Felten reports on his keynote at the SANE conference in the Netherlands:
The talk was a quick overview of what I used to think of as the copyfight, but I now think of as the technologyfight. The first part of the talk set the stage, using two technologies as illustrations: the VCR, and Sony-BMG’s recent copy-protected CDs. I then switched gears and talked about the political/regulatory side of the techfight.
In the last part of the talk, I analogized the techfight to the Cold War. I did this with some trepidation, as I didn’t want to imply that the techfight is just like the Cold War or that it is as important as the Cold War was. But I think that the Cold War analogy is useful in thinking about the techfight.
The analogy works best in suggesting a strategy for those on the openness/technology/innovation/end-to-end side of the techfight. In the talk, I used the Cold War analogy to suggest a three-part strategy.
He offers a three-prong strategy in the techfight. Prong 1 is containment: patiently but firmly resisting content industry efforts to gain ever more control over our technological devices. Prong 2 is explanation: Make sure that the public clearly understand what’s at stake. This is, I think, the most difficult task. I remember wandering around the University of Minnesota campus in 2001 with flyers explaining why it was a bad thing that Dmitry Sklyarov was in jail. I got mostly blank looks. Consumers benefit from open technologies, but most of them don’t really understand how they work or why they’re important. I think this job is gettig a little bit easier as DRM-related problems become more widespread, but the issue is still off the radar of virtually all voters.
I think his third prong is the most important, creation:
Continue reading →
Chicago law professor Doug Lichtman has a great new paper about the patent holdout problem:
A patent holder whose patent is made public only after the relevant technology has been widely adopted can demand not only a royalty that reflects the intrinsic value of that technology but also a royalty that reflects the value of each infringing firm’s technology-specific investments. This is the familiar patent holdout problem, and it particularly plagues the standard-setting process. Importantly, and the insight missed both in practice and in the literature today, the greater the number of patent holders in this holdout position, the less each can expect to earn from this tactic. That is, if fifteen patent holders can credibly threaten to shut an infringer for six months while that firm redesigns its products and services, the value associated with avoiding six months of disruption must be split fifteen ways. If three hundred patent holders can credibly make that threat, the pro rata share drops by a factor of twenty. More patents means less money per patent holder. Less money, in turn, means less of an incentive for a firm to strategically delay in the hopes of being a patent holdout, and less of an incentive for an accidental patent holdout to actually bring suit.
This might explain why standards like MPEG, which are buried in dozens of overlapping patents, haven’t been brought to their knees by litigation. There are probably a number of patent holders who could credibly threaten to shut down the world’s DVD players. However, the MPEG-LA can credibly refuse such extortionary demands, because they know that the moment they allow one patent holder to extort more than their fair share, the floodgates would be opened to continued extortion.
But I also expect there’s some legal realism at work here. No judge is crazy enough to order the sale of all DVD devices be halted. Even if a particular patent holder theoretically has the right to obtain an injunction, in practice they are constrained by the fact that if they behave too outrageously, the judge in charge of the case will begin to rule against them. This further strengthens the hand of standards-setters in negotiations with would-be patent trolls.
What I found most interesting about the paper, though, is how frankly Lichtman–who I don’t think is a critic of patents generally or software patents in particular–lays out the flaws in the current patent system, especially as it relates to high-tech inventions with hundreds of components. He explains how difficult it is for honest technology creators to discover patents that might be relevant to the technology in development, how the system gives inventors the perverse incentive
not to search for relevant patents to avoid treble damages, and how the holder of an undiscovered patent can lie in wait until other companies make significant investments based on their patents and then exort large sums of money from the hapless inventor.
Lichtman offers a creative explanation as to why this screwy system hasn’t done more damage than it has, but the broader question is: what can we do to fix the system so it’s not so broken in the first place?
His paper is (as he puts it) mercifully short, so I encourage you to check it out. He has invited comments over at the Chicago law blog.
In case any of you are interested in careers in public policy, I wanted to draw your attention to several great entry-level job opportunities at the Cato Institute. I wanted to particularly note that my old job at Cato, the staff writer position, is open. You get to attend all of Cato’s events, and you get to work closely with David Boaz, Cato’s executive vice president, and the man who makes a lot of the day-to-day management decisions at Cato. In my opinion, it’s the best entry-level position at Cato. The primary qualifications are excellent writing skills and a deep familiarity with the libertarian philosophical tradition. Past staff writers have gone on to be successful policy analysts and journalists.
There are also three research assistant positions available: in the defense, welfare, and health care departments, respectively. If you’ve got a background and/or interest in any of those areas and would like to work for the nation’s premiere libertarian think tank, consider sending them a resume. Finally, if you’d like to be the one who pitches op-eds by Cato scholars, there’s a position as manager of editorial services available. Top-notch editing and writing skills are a must in that position as well.
Matthew Yglesias has a fantastic post about what’s wrong with data-mining programs like that apparently being deployed by the NSA:
The problem is that when you’re searching for a rare condition, like being a terrorist, even a very precise statistical tool is going to overwhelmingly give you false positives. Ordinarily, when people are doing statistical analyses they take 95 percent confidence to constitute a statistically meaningful result. But there are 200 million people in the NSA pool and only a handful of terrorists. How many? Let’s be generous and say there are 200 al-Qaeda sleeper agents in the USA. Then you apply a 95 percent accurate statistical filter to 200 million people. What you’re going to wind up with are 10 terrorists labeled non-terrorists, 190 terrorists labeled terrorists, and a whopping 10 million non-terrorists labeled terrorists.
That’s a process that works. You’ve reduced the size of your search pool by an order of magnitude. The program “works.” But what does it really accomplish?
In practice, nothing. The NSA can’t hand the FBI the names of 10 million Americans and ask them to investigate–that would be a silly waste of time.
Now what you can do is that if in addition to your secret, illegal, oversight-free call records database you’re also running a secret, illegal, oversight-free wiretapping operation is start listening to the content of everyone in the 10 million group’s conversations. Obviously, the manpower’s not going to exist to actually listen to all that, but maybe you have another data-mining algorithm that can run on the content. Say this one is also 95 percent accurate. That means 10 more terrorists will get away. And 7.5 million innocent people will be off the hook. But you’re still left with a pool of 2.5 million innocent people and only 180 terrorists left under suspicion.
What you would do with that information just isn’t clear to me. There’s still not enough manpower to do serious investigations into all those people. And it would be insanely abusive anyway to subject such a huge group to invasive investigations when over 99.9 percent of them are totally innocent. Trying to compile a list of “people with Arab-sounding names” would be about as effective as these two computer algorithms.
So you’re not likely to catch many terrorists with a program like that. What such a database
would be useful for is harrassment and blackmail. Want to know who’s been spilling White House gossip to the New York Times? All you need is the reporter’s phone number and you can dramatically narrow down the list of likely leakers. Want to find out if a political opponent has a mistress? Pull up a list of his phone calls over the previous 6 months and you’ll have a short list in a matter of minutes.
Matt concludes:
In a lot of ways, that’s the most troubling aspect of this. You have a program that would be much more effective for abusive uses than it would be for its ostensible purpose. The people ultimately in charge of the program have a well-earned repuation for dishonesty and a well-earned reputation for hardball politics. They’ve gone out of their way to make sure that the program operates in total secrecy and is subject to no meaningful oversight. Why on earth would you want a program like that?
Go read the whole thing.
Update: Obviously 5% of 10 million is 500,000, not 2.5 million. I don’t think that really affects his argument, though.
Over at the Cato blog, Radley Balko reports that James Sensenbrenner has prepared legislation to require your ISP to maintain records of your online activities to assist law enforcement officials. For the children, of course:
In addition, Sensenbrenner’s legislation–expected to be announced as early as this week–also would create a federal felony targeted at bloggers, search engines, e-mail service providers and many other Web sites. It’s aimed at any site that might have “reason to believe” it facilitates access to child pornography–through hyperlinks or a discussion forum, for instance.
Speaking to the National Center for Missing and Exploited Children last month, Gonzales warned of the dangers of pedophiles using the Internet anonymously and called for new laws from Congress. “At the most basic level, the Internet is used as a tool for sending and receiving large amounts of child pornography on a relatively anonymous basis,” Gonzales said.
I’ll just say I don’t think that sounds like a good idea.
Update: Hmmm… our template seems not to be wide enough to accomodate cartoons. Click it (or the permalink below) to read the whole thing.
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