I would say I called the Grokster decision. The “substantial non-infringing use” standard did not exist in a vacuum. Rather, it was embedded in a set of considerations concerning the motivations and impact of a company’s business model. In Sony’s case, the Betamax was clearly an innovative new piece of hardware that incidentally enabled copyright infringement. Grokster, in contrast, was a novel way to evade copyright law that incidentally allowed people to share a few legal files. Rather than buying Grokster’s fatuous arguments and mechanistically applying the “substantial non-infringing use” standard where it clearly didn’t make sense, they looked at Grokster’s actual behavior and business model and concluded–correctly in my opinion–that Grokster was obviously a program designed to facilitate copyright infringement.
The interesting question is whether the court has created a new standard, a successor to “substantial non-infringing use”, that will provide the technology industry with a safe harbor for innovation. On a cursory reading, it appears that the opinion is decided narrowly enough–focusing on Grokster’s specific business model and the ample evidence that they fully intended to attract illegal file-traders–that this shouldn’t strike fear into the hearts of future entrepreneurs. As long as a product is designed for a legitimate use, the fact that many of its users engage in piracy shouldn’t put the product under a legal cloud. I could be wrong, though.
(Cross-posted to the Bit Bucket)
This is hilarious.
Strange thing about an operating system with missing functionality… no one wants to sell it. That’s what the European Commission is discovering, as major PC OEMs are declining to preinstall the media-player-free Windows XP N on any of the systems they sell. While Fujitsu Siemens says they’ll sell it “on request,” Dell, Lenovo, and HP are all taking a pass on it.
EU antitrust regulators won their battle against Microsoft, securing a court order to “unbundle” Windows Media Player from Windows XP. Now consumers are free to get the products separately if they prefer.
And now we’ve learned that, strangely enough, when you offer people with a product with fewer features for an identical price, most people don’t buy it! (My girlfriend, who pines for the days of DOS 6, says she’d buy it; she seems to be in the tiny minority though)
I think this exercise has laid bare the absurdity of Microsoft’s antitrust critics, who claim that Microsoft has somehow been shoving unwanted browsers and media players down their customers’ throats. Those customers who who pay attention to such things can easily download FireFox and Quicktime. Those customers who don’t pay much attention, by definition, don’t care very much.
So who exactly are the EU’s antitrust busybodies helping? When they attain victory and consumers across the continent yawn, maybe the regulators were barking up the wrong tree in the first place.
The FCC recently voted to require VoIP providers to offer full 911 support.
Obviously, my initial libertarian reaction is that the government should butt out and let consumers choose the phone service they like. If 911 service is important to them, they can choose a provider that offers it. If none do, they can stick with good old Plain Old Telephone Service. No one is being forced to get VoIPed.
But I think it’s not crazy to argue that 911 service is one of those things you don’t really think about until you need it, and then it’s too late. Moreover, one can’t always tell if one has 911 service–you can’t exactly call 911 to find out if the service is working. So I’m not sure I’m necessarily opposed to a 911 mandate as such. In the POTS world, at least, it’s minimally intrusive and probably saves lives.
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I just came across this great article from 2000 by Clay Shirky. He argues that micropayments are a bad idea that are doomed to fail because they economize on extremely cheap resources (bandwidth, content) at the expense of a relatively valuable resource–the user’s time. He persuasively argues that there’s no such thing as a no-brainer transaction–if a micropayment is large enough to be worth the bother to the seller, then it’s large enough that the buyer will want to consider it before approving it. But the time and annoyance of having to think before clicking on every link the user encounters might vastly outweigh the value of the penny being transacted.
Another way to put this, I think, is that we already have micropayments: they’re called ads. Users pay for content, not with cash payments, but with their time– giving a split-second of attention to the ads on the page as they read the content. And it turns out that in most cases, advertisers are willing to pay more for ad impressions than users are willing to pay for content. And users prefer ads to micropayments because micropayments take more time and hassle to deal with than ads that can be easily and safely ignored.
I think this is almost certainly a bad thing. As I’ve written before, the idea that a rumor about the general characteristics of an upcoming product is a “trade secret” borders on the absurd. And precedent would seem to show that you can’t be held responsible for the lawbreaking (or in this case, contract breaking) of your sources as long as you obtained the information legally.
On the other hand, I’m not sure I buy this business about giving journalists special exemptions for the confidentiality of their sources. With the explosion of new online media, it’s becoming increasingly unclear who counts as a “real” journalist. Instapundit doubtless gets more Internet traffic than many a small-town newspaper’s web site, and he offers more news than the average tabloid. So by what standard other than prejudice against a new form of media should he receive lesser protections than his print colleagues?
I don’t know enough about this area of law to have a good idea of how things should be changed. But any law attempting to draw sharp distinctions between journalists and everyone else is taking the wrong tack, and will find that position ever more untenable as the line between “the press” and “the people” continues to blur. The law needs to be changed to reflect that fact that nowadays, anyone can become a pseudo-journalist by signing up for a TypePad account.
I’ve agreed to be the science and technology editor for Brainwash, the online magazine of America’s Future Foundation.
Here is my inaugural column. In it I take on Apple Computer’s ridiculous lawsuit against Think Secret for printing rumors of upcoming Apple products.
I’m going to disagree with co-blogger Tom Bell’s prediction that a decision by the Times to charge for content would trigger the blogosphere apocalypse. As I understand it, the right to quote excerpts from copyrighted material has been firmly established in law for decades. So much so that the Times probably wouldn’t waste time trying to get it overturned. In particular, it’s clearly legal to quote relatively brief snippets of a copyrighted source, and clearly illegal to reprint entire works without the permission of the copyright holder.
I don’t know where the exact line lies, but I don’t think it matters too much. Legitimate bloggers engaged in genuine criticism won’t need to excerpt entire articles, and the
Times which knows this sort of law better than anyone, likely won’t waste their time on them. Indeed, I think the law is so clear on this issue that the judge would probably dismiss it almost immediately. Unless there’s some novel aspect to this that makes it different from the print realm, a single EFF or ACLU lawyer who knows how to write a motion to dismiss would probably be sufficient to keep the Times at bay indefinitely.
On the other hand, bloggers who excerpt entire articles are clearly stealing content from the
Times and hence will likely get sued. But it’s hard to see how that’s a bad thing– the blogger in question can either shorten the quote to an excerpt, or remove it entirely. Here, it’s unlikely that any blogger will be stupid enough to try to defend blatant copyright infringement.
I’m a little puzzled about the supposed great temptation to excerpt. Yes, I like getting traffic to my blog, and so I’ll post things that I think will get me readers. But the benefits of increased traffic aren’t so substantial that it would be worth breaking the law and risking the wrath of
Times lawyers. Given that the Times is available on newsstands around the country, the market value of any given article is pretty trivial. And certainly being known as the guy who steals New York Times content won’t make me famous or popular.
So personally, I think the
Times will be shooting itself in the foot if it starts charging for content, but I don’t think its decision to do so will have any particular impact on the future of blogging, copyright law, or the fair use doctrine.
The Washington Post reports that the MPAA is launching a legal campaign against three file-sharing networks, eDonkey, Direct Connect, and BitTorrent.
The
Post makes a pretty basic error: BitTorrent is not a company. This should have been obvious from its minimalist web site. They’re an open source project widely popular in the open source community.
Moreover, unlike with traditional P2P networks, not just any client can upload a BitTorrent file. Instead, you have to run a “tracker” on a server somewhere to coordinate the downloading of files– or ask the operator of another tracker to serve your file. What that means is that trackers operators have considerable control over which files are offered, and different BitTorrent servers will have different mixes of files on offer.
What will be interesting about this case is that many BitTorrent downloads are entirely legal. Open source projects are typically distributed for free over the Internet, and it takes gobs of bandwidth to do so. Many open source projects are available for download via BitTorrent to save themselves bandwidth.
What this means is that, to an extent not true in the
Grokster case, there really are “substantial non-infringing uses” to the BitTorrent application, as required by the landmark Sony Betamax case. The argument used against Grokster–that the company’s business model depended on pirated files, and the few legitimate downloads were just window dressing–just won’t stick against BitTorrent.
The MPAA’s lawyers seem to understand this, because they’re targetting trackers rather than the developers of BitTorrent itself. And I assume they understand it well enough to focus their attacks on those trackers that offer little else but copyrighted content.
The
Post’s David McGuire, on the other hand, doesn’t seem to understand the technology involved. That’s not actually too surprising. Reporters often mangle technical details. But this is a case where the technical details matter, and so it’s hard to understand what the legal battle is about if they get mangled.
Next year, the Supreme Court will (as Reason’s Jeff Taylor puts it) “decide if your cable modem is really a telephone.” TechWeb has the story.
On the legal merits, it seems like it could easily go either way. I’m not a lawyer, but it’s hard to see how cable broadband is any different from DSL broadband. They’re technically similar and they’re marketed in identical ways; the only difference is the physical characteristics of the cable that carries the data. It’s hard to see how that’s a reasonable basis for distinguishing the two.
On the other hand, in policy terms, the people who want to impose the byzantine DSL regulations on cable have some pretty idiotic arguments:
“If the Supreme Court rules against Internet open access, cable companies will be able to block content at will for political or financial reasons, and deny the public the ability to choose among competing Internet providers,” he said. “The outcome of this case will–quite literally–determine the future of the Internet as we know it.” MAP is a public-interest telecommunications law firm.
Uh huh. If I wanted a new ISP, could switch to DSL or an analog modem tomorrow. I could cancel and get Internet access from the coffee shop down the street. In a few years, I’ll likely have the option to switch to fiber optics, wireless broadband, or satellite data services. Yet knowing all this, these guys think my cable company is going to piss me off by trying to tell me what web sites I can visit or what protocols I can use? Any company that did that would see a large segment of its customer base flee to competitors.
I’m not sure if it would be kosher for the Supreme Court to do it, but
someone has got to cut both cable and DSL loose from traditional telecom regulations. Just the competition between those alone (I’d be fine with a rule that says no cable company can buy the local DSL provider and vice versa if that would make people more comfortable) will ensure there’s broadband competition in all major markets, and if anything, deregulation will increase competition by encouraging the build-out of new facilities like fiber optics. So the idea that the federal government needs to micro-manage this market to ensure competition is silly. If the Supremes won’t give us deregulation, Congress should. I certainly don’t want the FCC to start treating my cable modem like a telephone.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.