Today’s USA Today editorial on network neutrality exemplifies many of the things that are wrong with that debate:
Much of the Internet’s appeal is that no one controls it in the way that, say, a grocery store decides which brands to stock. Within its virtual walls, a start-up such as MySpace or Craigslist can surge to prominence entirely on the power of an idea.
Now, some very old-school companies want to change all that. Using market dominance achieved through the relative scarcity of lines into people’s homes, phone companies such as BellSouth, Verizon and AT&T are eyeing a system that would demand that operators of search engines, e-commerce sites and other Web applications pay them fees or be relegated to the slow lane.
In the first place, these companies have no ability to change “all that.” Each of them controls a fairly small share of the US residential broadband market. The Internet is bigger than residential customers, and it’s bigger than the United States. There’s no threat that AT&T, Comcast, or anyone else will change the way the Internet as a whole operates.
Secondly, the web is not the Internet. And in fact, the web is largely irrelevant to the debate. The bandwidth that’s available today is already more than enough to browse the web comfortably. Network neutrality regulations, if they are necessary at all, are required for next-generation services like video and voice, not web sites.
A who’s who of the copyright industry have submitted comments in the Librarian of Congress’s triennial review of the DMCA’s anti-circumvention provisions. In it, they argue that the Librarian shouldn’t grant any exemptions to the anti-circumvention provisions because they have done such a splendid job of stimulating the production of creative works:
The “availability for use of copyrighted works” is perhaps the most important statutory factor to be considered when assessing the impactof § 1201. The Joint Reply Commenters believe that the undeniable success of the current digital marketplace, which has given consumers of copyrighted material more choices than ever before, should weigh heavily against the recognition of any exemption in this proceeding. When the Register and the Librarian “carefully balance the availability of works for use, the effect of the prohibition on particular uses and the effect of circumvention on copyrighted works,” it will become clear that the DMCA has come a long way toward achieving its goals without burdening noninfringing uses in any significant way.
It’s certainly true that there are a lot of copyrighted materials for sale today, and that’s great. But I don’t understand what the copyright industry thinks would have happened in the absence of the DMCA. Would Disney, Paramount, Universal, et al have cut back on the number of movies and albums they produced? Would they have liquidated their assets and returned the capital to their shareholders? Would they have refused to release any content in digital formats?
Of course not, and that’s not just speculation. We know exactly what the content industry would have done if DRM technology hadn’t been available: they would have continued to sell as much content as they could, just as they do now. How do I know that? Because to this day, the recording industry sells millions of copies of new music in the DRM-free CD format.
If the music industry really believed its line that content owners will only offer their content with DRM protections, then they would have stopped selling CDs the moment DRMed formats like iTunes became widely available. But of course they didn’t, because they don’t even believe their own spin. They know perfectly well that the vast majority of their customers are honest and wouldn’t steal their music even if they had the physical capability to do so. But if they admitted that they’d continue producing content with or without DRM, it would make it much harder to pretend that they support the DMCA for the benefit of consumers.
The Electronic Frontier Foundation is challenging Clear Channel’s patent on a system that records an event and produces copies of the recording for distribution at its conclusion. This is, quite simply, an obvious concept. Recording a show is certainly not a new concept, and the idea of doing so quickly, while certainly a valuable enhancement, doesn’t strike me as an “invention” worthy of legal protection. This illustrates an important reason that software patents are almost always obvious: this patent is just a grab bag of distinct features thrown together with some software glue. Recording, real-time editing, and burning, individually, are not difficult or original concepts. Moreover, there are general principles of good software design that make combining these three features into one system straightforward for anyone “skilled in the art” of computer programming.
James DeLong kindly commented on my recent post mocking his shopping cart analogy.
DeLong has a strange all-or-nothing conception of copyright law. He seems to see only two choices: either consumers must slavishly obey the restraints of DRM, or they have the right to do absolutely anything they like with copyrighted materials. Hence, if I criticize DRM for preventing me from watching DVDs on my iPod, that means that I think Netflix should be illegal.
That’s silly. So is his claim that “it is probable, though not legally certain, that shifing the playing venue [i.e. transferring a DVD to an iPod] would not be classified as fair use.” The courts in Diamond v. RIAA held that “space shifting” of music from a CD to an MP3 player was legal, citing the Betamax decision as precedent. It sure seems like the same reasoning would apply to movies. But perhaps there’s a legal nuance I’m missing.
Finally, I continue to be baffled by this sort of argument:
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This is inexcusable. After spending several billion dollars, the federal government apparently can’t manage to include Mac support in its website for online grant applications.
I rant a lot about open standards, but this is a perfect example of why they’re important. There’s nothing complex or challenging about building a website that works on both Macs and PCs. There’s a set of very clear standards that you can follow to ensure that your web site will work on all browsers. Sure, there are occasional incompatibilities, but there should be enough room in a budget that runs into the “tens of billions” to fix the occasional incompatibility.
There’s no excuse for requiring someone to acquire a particular operating system or web browser in order to participate in a government program. While we can debate whether the government should be required to use open standards for internal business, in cases like this where the government deals with the general public, they should be required to adopt open standards where ever they are available.
Douglas Lichtman of the University of Chicago has a sensible paper on digital rights management technology:
Legal rules in every area of human interaction are implemented through a combination of powerful public mechanisms and weaker but less costly private ones. With the advent of DRM, copyright law is today no different. The task now is not to legislate DRM out of existence, but instead to follow the model adopted in every other arena: calibrate copyright law such that it harnesses the very real advantages of technological enforcement while at the same time keeping an appropriately wary eye on what might turn out to be overly aggressive uses.
This is exactly the way the issue should be approached. My only quibble is with the idea that there are people trying to “legislate DRM out of existence.” All we DRM critics are trying to say is that it ought not be singled out for special legal status in statute. There isn’t a federal fence-hopping statute, and there shouldn’t be a federal anti-circumvention statute.
In particular, I hope that Prof. Lichtman pursues this line of inquiry further:
With respect to DRM in the form adopted by iTunes, meanwhile, maybe copyright law should adopt nuanced rules like those that today limit the scope of the privilege of self-defense. The commonality here is that in both instances self-help ought not be allowed to become too common. Frequent self-defense would give rise to a vigilante state; widespread iTunes-style restrictions would reduce hardware competition by in essence making it impossible to enter the hardware market without simultaneously entering the relevant content business as well.
This is, I think, the most compelling critique of the DMCA: not that it gives content owners too much control over their own content, but that it needlessly balkanizes media technologies into mutually incompatible platforms controlled by companies like Apple and Microsoft.
Prior to the enactment of the DMCA, we
had “nuanced rules” governing the intersection of copyright and technology. The Supreme Court, in its 1984 Sony Betamax decision, stressed the need to insure that the monopoly granted by copyright law did not interfere with “the rights of others freely to engage in substantially unrelated areas of commerce.” The courts were doing a pretty good job of striking that balance.
But the DMCA threw that evolving body of law out the window, replacing it with a blanket anti-circumvention rule. That rule has allowed the monopoly granted by copyright to bleed into monopolies in “substantially unrelated areas of commerce,” such as MP3 players, DVD players, televisions, etc. All repealing the DMCA would do is restore the courts to its proper role of fashioning “nuanced rules” that properly balance competing interests as the Supreme Court did in
Sony and Grokster.
James DeLong makes a rather silly analogy between DRM and shopping carts:
Shopping carts [at my local grocery store] can be wheeled out to the trunk of your car in the parking lot. Much more convenient. The cart bears a notice: “Take this beyond the parking lot and the wheels will lock.”
Clearly, this is some kind of wireless ditigal technology–DRM, in fact.
So I began thinking. Don’t shopping carts want to be free? Shouldn’t it be fair use to wheel the cart to my home? After all, there are lots of them, so I would not really be depriving another shopper of the use of a cart.
This is, rather obviously, not true. If you wheeled your cart to your home, there’s a pretty good chance you wouldn’t wheel it back. Over time, stores would run out of carts and need to buy more of them. The marginal cost of a shopping cart is not (as he bizarrely asserts later in the post) zero, or anything close to it. So it’s economically inefficient for someone to take a cart home and lose it. Good public policy requires that taking a cart off the premises be treated as theft.
But how that relates to DRM, or the debate over the DMCA, is a mystery to me. Here’s a better analogy: a law that flatly prohibited anyone from disabling such anti-theft technology, regardless of the reason. So if, for example, I happened to park my car at the very corner of the parking lot, and the people who set up the technology goofed and made the wheels lock up before I reached my car, it would be a federal crime to drag my cart the last few feet to my car in order to unload my groceries. Or, as another example, if the grocery store sold me one of their surplus carts, should it be a federal crime for me to remove the wheel lock after the sale?
The argument against DRM isn’t that consumers have a right to infringe copyright. (well, some fringe critics make that argument, but not me) The argument is that it needlessly prevents people from doing things that are
otherwise completely legal. Like transferring a DVD to your iPod to watch on the road. Or playing a DRMed song on a high-end stereo system that doesn’t support that particular DRM format. Or including a short clip from a DRMed song in a presentation.
“Stealing” music by uploading it to or downloading it from a P2P service always has been illegal, and it would continue to be so if the DMCA were repealed, just as stealing a shopping cart has always been illegal. The analogous Issue is whether we need blanket federal legislation outlawing all circumvention of wheel locks, regardless of the purpose. I don’t think that’s good policy, and I suspect DeLong wouldn’t either.
I find myself unimpressed by this site urging people to contact their Congresscritter and support network neutrality. We’re told:
This broadband assault would reduce your choices and stifle the spread of innovative and independent ideas that we’ve come to expect online. It would shift the digital revolution into reverse.
Internet gatekeepers have already:
Blocked services: In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.
Blocked content: In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a contentious labor dispute.
If these media giants get their way, they’ll shut down the free flow of information and dictate how you use the Internet forever.
That sounds at least moderately ominous. Let’s dig a little deeper:
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Research in Motion has released information about what they call a “workaround” for NTP’s patents:
Currently, when the [Network Operations Center] determines that a BlackBerry device is outside of a wireless coverage area, it queues the message and resends the message when the BlackBerry device becomes available, without interaction with the BlackBerry Enterprise Server (or BlackBerry Internet Service).
With the BlackBerry Multi-Mode Edition software update, the NOC no longer queues messages. If a BlackBerry devices is out-of-coverage, the NOC will inform the BlackBerry Enterprise Server (or BlackBerry Internet Service) that the messages cannot be delivered at that time. The BlackBerry Enterprise Server (or BlackBerry Internet Service) will be queue the messages until it is notified by the NOC that the BlackBerry device is available.
Does this “work around” NTP’s patents? I have no idea. Here’s what’s claimed by one of NTP’s patents:
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This proposal by AOL and Yahoo! to charge postage for bulk email doesn’t strike me as a terribly good idea. It’s pitched as an anti-spam tactic, but that doesn’t seem right. Spam will still be spam. It will continue to be filtered out as best as AOL is able using traditional spam filters. Some spam will continue to get through, just as it does now.
What AOL and Yahoo are doing is attempting to take a cut every time a legitimate business wants to communicate with its customers. For example, I’ve given Apple permission to send me occasional emails: I like their products and don’t mind an occasional sales pitch. I know that if I get tired of those emails, I can banish them with an “unsubscribe” request. Apple values its relationship with me and wouldn’t risk my anger by sending emails after I’d asked them to stop.
I don’t see how I benefit in the slightest if my ISP begins charging Apple for the privilege of sending me those emails. To the contrary, by discouraging some companies from offering bulk-email subscription services, I would actually be made worse off if the policy is enforced aggressively. Smaller companies, non-profits, and others on tight budgets might decide that they simply won’t deliver their emails to Yahoo and AOL email addresses.
Whatever benefits this plan might have for consumers (so far, I’m not seeing any), fighting spam is not one of them. While I fully support their right to charge for the valuable service they provide, it seems misleading to pretend this plan is somehow for the benefit of their users, rather than simply a way for them to generate more revenue.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.