Articles by Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.


Ignorance is Strength

by on April 25, 2006 · 10 comments

Apropos Adam’s post about network neutrality and the first amendment, one of the cleverest things about the pro-network-neutrality campaign is the way they’ve been able to subtly portray themselves as defending the status quo against greedy telecom companies. We’re told that network neutrality is “the First Amendment of the Internet,” but “Internet provides like AT&T and Verizon are spending millions of dollars lobbying Congress to gut net neutrality.”

The fundamental problem that net neutrality advocates have is that theirs is a solution in search of a problem. Check out their list of “numerous examples” of net neutrality abuse:

  • In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.
  • In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a labor dispute.
  • Shaw, a big Canadian cable TV company, is charging an extra $10 a month to subscribers who want to use a competing Internet telephone service.
  • In April, Time Warner’s AOL blocked all emails that mentioned www.dearaol.com–an advocacy campaign opposing the company’s pay-to-send e-mail scheme.

    • For those keeping score at home, that’s two incidents in Canada (which, last I checked, is not within Congress’s jurisdiction) and a third that was most likely an honest mistake. So their “numerous examples” of net neutrality abuse in the US amount to one alleged incident by an ISP in North Carolina that no one has ever heard of. That hardly sounds like a looming crisis.

    Which creates a problem, because they know that without a sense of urgency, Congress will (justifiably) take a wait-and-see attitude. So to generate that sense of urgency, they’ve taken a page out of Mr. Orwell’s book: those of us who think Congress should leave well enough alone are trying to “get rid of net neutrality.” Telecom companies who don’t want the FCC telling them how to run their networks are trying to get “special rules written in their favor.” On the other hand, those who advocate intrusive new govenment regulations are just trying to “preserve the freedoms we currently enjoy on the Internet.”

    But war is not peace and freedom is not slavery. It’s the “save the Internet” coalition, not its opponents, who are seeking to fundamentally change the Internet by giving new powers to government regulators. The looming threat here isn’t from corporate control (which Congress can step in at any time to curtail) but from government control (which, once established, is unlikely to ever be repealed). Maybe it’s a good idea to expand governmental regulation of the Internet, but if so, the supporters of doing so should call a spade a spade.

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    What the PC Industry Tells Us about the DMCA

    by on April 25, 2006

    The Heartland Institute’s IT&T News has published my latest article on the DMCA:

    Intel, which manufactured the processors at the heart of the first PCs, encountered the same kind of unauthorized competition in its platform in the early 1990s. Several companies, including Advanced Micro Devices, began producing chips that could run software designed for Intel chips. The result has been rapid innovation and constantly falling prices in the market for processors. In short, intra-platform competition among the likes of Intel and AMD has contributed even more to innovation in the PC industry than inter-platform competition between Windows and Macintosh. The law ought not to stand in the way of analogous competition in the market for digital media devices. An entrepreneur who wants to compete with the iPod by building an MP3 player that works with the iTunes Music Store should not be prevented from doing so by copyright law. Yet that is precisely what the DMCA does.

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    Software Patents, Java, and .NET

    by on April 24, 2006

    MikeT has a great post comparing the relative performance of Sun’s Java platform and Microsoft’s .NET platform:

    Microsoft has refused to open up the .NET platform to the same degree as Sun has, and while there is freedom to implement parts of the base specifications, the legal status of any alternative implementation is in limbo because Microsoft won’t commit to the same open licensing of its patents for .NET that Sun has for Java. There is no “.NET Community Process” that can provide the same sort of assurance that the Java Community Process can provide. One of the benefits of the JCP has been that it has provided a few major corporations with sufficient incentive to write their own Java implementations that a credible open source implementation was not even started until recently whereas no on has hitherto dared to develop a commercial .NET reimplementation. The very existance of these implementations is important because they provide the developers and users of Java and .NET with the assurance that they are not betting everything on just one vendor. Advocates of software patents almost always underestimate the importance of such multiple, non-patent-encumbered implementations to the success of a platform. Developing Java or .NET may be expensive, but for the actual developers and users who will make use of them, there is often even more to lose by tying an entire infrastructure to a technology that can only be provided by one vendor. Lastly, consider this, you skeptics out there. Where would the market for Java application servers be today were it not for Apache Tomcat and JBoss providing high quality open source alternatives to the extremely expensive proprietary servers? This alone is a very good reason why software patents ought to go. Had Sun left other companies and open source groups in limbo on what they would do with their patents, few companies would have invested into the development of Java application servers. It was Sun’s decision to not use their patents except as a mechanism to control the purity of the implementation of the Java platform that really got things going. Since Microsoft has not yet committed to allowing others to develop .NET runtimes that are fully compatible with theirs without licensing technology from them, the market for .NET products has been primarily limited to those who wanted to replace existing Microsoft-specific code rather than build a totally new market the way that Java has started.

    I can think of a few factors that might help explain Java’s lead (perhaps most notably, Sun had about a 4-year head start) but I think the general point is a sound one. In fact, this is a point I plan to stress at Wednesday’s Cato conference: just as planned economies don’t work as well as decentralized, market-oriented ones, so too do technological platforms controlled by one vendor tend not to do as well as platforms in which anyone is free to participate without seeking permission of a centralized authority. What software patents and the DMCA do, in effect, is encourage the technological equivalent of central planning. Central planning doesn’t work for national economies, and it doesn’t work for software platforms.

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    Google’s First Software Patent

    by on April 24, 2006 · 8 comments

    A couple of weeks ago, Patrick Ross mentioned a talk given in Brazil in defense of software patents:

    GWU Law Professor John Duffy defended software patents. A good example of a software patent, he said, is Google’s first patent. It patents their search approach, which starts with a basic search, then involves a search within the search results based on popularity. That innovation has led the company to a market cap of $123 billion, but couldn’t be protected by copyright because the method could be written in a thousand different ways.

    Intrigued, I wrote him asking for details. He kindly pointed me to Duffy’s PowerPoint slides.

    I’m not impressed. Here, literally, is the slide making the argument about Google:

    Patents can make you rich and famous. Example: Google = $123 billion Google is built on a a few key software patents.

    Now, it’s probably not fair to judge a presentation from its PowerPoint slides. I’m sure Duffy’s presentation was far more nuanced than this simplistic rendering suggests. Still, even taking that into account, this is pretty weak sauce. You can’t just attribute Google’s market cap to its patent portfolio, as though that settles the matter. Duffy’s slide presents no evidence whatsoever that Google’s patent was key to its success. It’s the crudest kind of post hoc ergo proctor hoc fallacy.

    It’s hard to see how Google’s story would have been any different in a world without software patents. The slides offer no evidence that any companies have actually been deterred by the existence of Google’s patent from producing a Google knock-off. If you examine the patent in question, it’s far too general to be of much use to someone wanting to do so. What makes Google so great isn’t the general concept of its search, but its superb implementation. They were the first company to take the general concept of treating links as votes and implement it in a way that could scale to billions of pages.

    But of course, implementation details are protected by copyright. Which means that in a world without software patents, Google would have gotten along just fine.

    Moreover, even if we assume that Google’s market cap is partly attributable to its patents (which I think is unlikely) that doesn’t prove that it’s a good thing. There are all sorts of government programs that make corporations wealthy. Ethanol subsidies have been good for ADM. Defense spending has been good for Northrop-Gruman. New York taxi medallions have been good for those fortunate enough to have one. The policy question isn’t whether these programs serve the companies that benefit from them, but whether they promote innovation and economic growth. I can’t see any reason to think that the availability of software patents makes future Googles more likely. To the contrary, the primary effect of software patents appears to be a kind of rent-seeking, wherein software trolls obtain software patents to extort legitimate companies, and legitimate companies are forced to acquire software patents (and retain lawyers) to defend themselves.

    There might be an example of a legitimate software patent out there, but this sure isn’t it.

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    AOL’s “Censorship”

    by on April 22, 2006 · 12 comments

    Declan has a long and interesting argument between Suresh Ramasubramanian, who’s the postmaster for several million email users, and Danny O’Brien, an EFF activist coordinator.

    A couple of weeks ago, AOL’s email system briefly blocked any email that had the dearaol.com URL in it. EFF responded by accusing AOL of deliberate censorship:

    “This proves the DearAOL.com Coalition’s point entirely: left to their own devices, AOL will always put its own self-interest ahead of the public interest in a free and open Internet,” said Timothy Karr, campaign director of Free Press, a national, nonpartisan organization working on media reform and Internet policy issues. “AOL wants us to believe they won’t hurt free email when their pay-to-send system is up and running. But if AOL is willing to censor the flow of information now to silence their critics, how could anyone trust that they will preserve the free and open Internet down the road? Their days of saying ‘trust us’ are over–their credibility is zero, zip, nada.”

    But as Ramasubramanian persuasively argues, it’s likely this was an honest mistake on AOL’s part: a few AOL users probably got unsolicited emails from DearAOL’s “send this to a friend” feature and flagged them as spam. AOL’s system probably concluded from that that dearaol.com is a spam address and started blocking emails that mention it. AOL fixed the problem within a matter of hours.

    Ramasubramanian rightly takes EFF to task for crying censorship without making any attempt to resolve the problem with AOL first. Administering email for tens of millions of people is a difficult job. It’s especially difficult when those users are clamoring to reduce the amount of spam in their inboxes. We can and should criticize AOL when its system screws up, so that consumers are aware of any problems, (personally, I much prefer email servers that leave the spam-filtering to the client side) but it’s not helpful or reasonable to immediately become confrontational about it.

    I think this accentuates what makes the DearAOL campaign wrongheaded in the first place. EFF is rightly vigilant about censorship by the government because we only have one government and it has immense power. We can’t afford to give the government the benefit of the doubt because if the government abuses its power it has the potential to shut down the expression of views it disapproves of. Once we give up a freedom to the government, we may never get it back.

    The AOL situation is very different. There are plenty of ways to communicate outside of AOL’s email service, so it’s unlikely that AOL would have much success preventing the discussion of ideas it doesn’t like. Moreover, unlike the government, AOL has competitors. If it begins doing obnoxious things with its email, its customers can switch to alternative ISPs. Moreover, many consumers want AOL to filter their email in order to prevent spam and viruses from being transmitted on their networks.

    Civil liberties organizations like EFF and the ACLU properly take a confrontational posture any time they see signs that the government is trying to stifle free expression. But the same posture simply isn’t appropriate when they’re dealing with private companies. As I’ve written before that I don’t think this is the sort of thing EFF should be getting tangled up in in the first place. EFF’s core competence is in resisting censorship by the government. The tactics that work well against government censorship come across as unreasonable and cartoonish when directed at a private company.

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    Alcohol Liberation Front

    by on April 21, 2006 · 8 comments

    Would you like to meet the men and women behind the Technology Liberation Front? If you live in the DC area, here’s your chance! Several of your favorite TLF contributors will be getting together for a happy hour on Thursday April 27 from 5-7 PM at the Gordon Biersch Brewery in Chinatown, just across the street from the MCI Center (or whatever they’re calling it these days–damned mergers!). We’d love to have a few of our readers join us.

    If you’re planning to attend, please leave a quick comment so we’ll have an idea of how many people to expect.

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    Rutledge on Franchise Reform

    by on April 20, 2006 · 2 comments

    On Tuesday I had the pleasure of helping to show Dr. John Rutledge around Missouri. Rutledge was an architect of President Reagan’s economic policy in 1981, and today he’s actively involved in helping bring together American capital with Chinese businesses in the interests of promoting economic growth in both countries. Here’s his take on Missouri’s cable franchise reform debate:

    Alice, who drives a cab for Best Taxi, told me “My cable bill is too high.” The Missouri Senate is sitting on a bill that would make it easier for new entrants in providing video services across the state. Similar laws, already passed in Texas, and Indiana have triggered price wars between new entrants and incumbent cable companies that have pushed prices for consumers down by about 50%. The legislators could give everyone in the state a $50/month tax cut and make Missouri more attractive for businesses at the same time. Wonder why they aren’t getting it done? The state Senator who is holding up the bill with the threat of filibuster is a former owner of cable stations. Now there is a coincidence. When I told this story to a receptionist she said, “I thought they were supposed to work for us.”

    At a press conference with the Missouri Chamber of Commerce, Rutledge talked about the fact that in many cases, the lack of telecommunications infrastructure in the United States makes it easier to outsource service jobs to India and China than to a small town in America. He argued that franchise reform would be an important spur for increased infrastructure investment, which will have a positive economic impact that will extend far beyond the cable TV industry.

    Of course, this is an issue that’s relevant beyond Missouri. We hear a lot about how the broadband market isn’t competitive enough. Well, this is one sure-fire way to increase broadband competition.

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    Epstein’s New Paper

    by on April 20, 2006 · 14 comments

    Richard Epstein has a new report on intellectual property. Epstein is a brilliant legal theorist (seriously–several of his books are classics of libertarian scholarship) but unfortunately, I think he analysis of IP issues–especially technology related IP issues–is hampered by his lack of familiarity with the underlying domain. Take this passage about open source, for example:

    One ongoing question is how well open source stacks up against traditional proprietary software. Much depends on the scale of the enterprise. The decentralized methods for open source work well with small systems, but are difficult to maintain as the network expands–a problem that any proprietary system also faces in integrating backwards to existing products while introducing new products. In addition, loose cooperatives must organize to fend off outsiders claiming that the entire system incorporates their trade secrets or IP. The present SCO litigation, for example, puts the entire Linux system at risk on these grounds, prompting the formation of a litigation committee to coordinate the common defense. Right now at the heart of the movement lies a commercial joint venture spearheaded by well-established firms like IBM, Intel, and Hewlett-Packard, which develop service and proprietary programs that operate on top of an open source infrastructure. The new development gives ample testimony that no loose assemblage of voluntary contributors will be able to carry the day any longer.

    To be honest, I’m not sure I follow the third sentence. I think that to the contrary, in many ways open source scales better than proprietary development models, because it takes advantage of the decentralized, spontaneous processes to solve problems rather than relying on hierarchical, top-down processes. Of course, generally speaking, large corporations like dealing with other large corporations for the IT needs, so it’s not surprising that IBM does a lot of business selling open source software (along with some of their own proprietary software) to Fortune 500 companies. But that’s not because open source can’t solve the technical problems of large companies. It’s simply that “open source,” as an idea, doesn’t have a sales force and can’t meet with corporate IT directors. IBM does, and can, so it tends to get the IT contracts. But most of the value was created by the volunteers who built the underlying software.

    He then claims that “at the heart of the open source movement” are IBM, Intel, and HP. He doesn’t elaborate, but I assume he’s equating “open source” with “Linux.” This is misleading for several reasons. First of all, those companies might be spending the most money on Linux-related products, but they’re hardly the core of the Linux community. Linux is still developed by a decentralized group of mostly-volunteer programmers from a wide variety of institutions, led by Linus Torvalds. They probably don’t seem significant to Mr. Epstein because they don’t have PR departments or billion-dollar balance sheets, but they’re the ones who control the direction of the core product. The work of IBM, Intel, HP, and their ilk is largely focused on making Linux work better on their particular systems, as well as building software on top of Linux to meet the needs of particular clients. Obviously, that’s often helpful to the overall project, but it hardly puts Big Blue “at the heart” of the Linux effort.

    But the broader point is that Linux is just one out of dozens of major, successful open source products that are used by millions of people every day–and most of them receive far less corporate support than does Linux. Most of them are programs that Epstein has probably never heard of–projects with names like Apache, Samba, Perl, Python, gcc, MySQL, KDE, Gnome, FreeBSD, OpenSSH–but that make up the “plumbing” that make the Internet work. Each of these projects has a core team made up of, well “a loose assemblage of voluntary contributors.” Some of them get corporate support, but that support is incidental to the projects’ viability in most cases. I can’t think of any recent developments that prove that the open source model will not “be able to carry the day any longer.” To the contrary, the open source development model continues to demonstrate its vitality by churning out spectacular products without significant corporate subsidies.

    Now, obviously it wouldn’t be fair to expect a 50-something law professor to be intimately familiar with products like gcc and FreeBSD. Linux is the product that gets the most press, and IBM is the Linux contributor that gets the most attention, and so Epstein naturally assumes that IBM is the biggest driver of open source software.

    It’s an understandable error, but these kinds of blind spots are dangerous when you’re doing public policy analysis. If you misdiagnose the source of innovation, you’re likely to misunderstand the institutions required to promote it. Computer geeks are the ones closest to the ground of high-tech innovation. When they’re shouting from the rooftops about problems with our IP system, I think the law professors of the world ought to pay a bit more attention to what they have to say.

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    Here We Go Again

    by on April 19, 2006 · 8 comments

    Cory Doctorow has a great post about the merits of network neutrality legislation:

    What we’re talking about here is getting the FCC to write up rules dictating what firewall rules ISPs can and can’t have. I’m an ISP right now–my laptop is WiFi rebroadcasting the Ethernet Internet access I’m getting at my hotel. Anyone can be an ISP. Do we really want the Feds to tell us what we can and can’t do with our network configurations? Do we believe that they can move fast enough and smart enough to do a meaningful job of it?

    Art Brodsky at Public Knowledge responds:

    This is not about someone picking up a Wi-Fi signal in a hotel room and considering that to be an ISP. This debate doesn’t apply to Cory in his hotel room, and if that’s his concern, the definition of an ISP could be tightened to clarify he’s not offering service to the public as the law considers it. The current legislation, and the Net Neutrality debate, applies to the network operators which have the ability to discriminate.

    Obviously, the FCC isn’t going to regulate Cory Doctorow’s laptop. But with all due respect to the otherwise astute Art Brodsky, these are precisely the kind of questions that’s likely to transform a seemingly clear standard into hopeless muddle once it’s turned over to the FCC. For example, is the hotel an ISP? What about Starbucks, which provides Internet access to hundreds of thousands of people through wireless access points? What about airport WiFi services?

    And regardless of how the FCC decides those questions (and you can bet there’ll be intensive lobbying and litigation over the question) it will amount to the FCC deciding what firewall rules those ISPs are allowed to employ. Is the ISP allowed to take aggressive measures to block spam and spyware? Can it block peer-to-peer file-sharing services? Can purchase network equipment that increases the “jitter” in its networks, thereby discouraging VoIP services? If not, is the FCC going to make up a list of approved networking gear?

    Now, I’m sure that for each of those questions, Brodsky has a reasonable answer and would tell us that Congress needs to “tighten up” the relevant definition to make sure that the FCC doesn’t come to an unreasonable conclusion. But that’s not the way politics works.

    When Congress passed the 1996 telecom bill, it created a distinction between a “telecommunications service,” which was regulated under common-carriage rules, and an “information service,” which was mostly deregulated. The distinction seemed pretty clear at the time: telecom services carry voice, while information services carry data. But of course, it only took a couple of years before people started carrying voice over their data line, and transmitting data over old copper phone lines. The distinction became incoherent, and required a decade of litigation to resolve.

    I’m sure that given the current state of technology and the current configuration of the telecom industry, Brodsky has a clear understanding of who’s an ISP and what counts as “discrimination.” It’s possible he’s right, although I’m skeptical. But even if he has a clear idea of how the rules should apply today, he can’t possibly be sure that the definitions Congress comes up with now will make sense in 10 years. Perhaps Cory’s laptop won’t be declared an ISP, but it’s a safe bet that some company will come along whose ISP status is ambiguous and lead to a lot of unnecessary litigation.

    Frankly, I don’t understand what the big hurry is. Comcast and AT&T can’t break the neutral Internet overnight, even if they wanted to. Congress can always come back and pass new legislation if network discrimination becomes a serious problem. But in an industry that’s evolving as rapidly as this one is, let’s not cement today’s concepts into a law that will be in force for a decade or longer.

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    Why the MP3.com Decision Was Never Appealed

    by on April 19, 2006

    In my DCMA paper I note in passing the sad case of MP3.com, which settled its copyright lawsuit after losing its case in district court, and before it could appeal the case. What I didn’t realize is the reason the case wasn’t appealed.

    I was delighted to receive an email from Michael Robertson, the founder of MP3.com (who has since founded Linspire and MP3tunes), who read the paper and wrote to explain why they didn’t appeal the case:

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