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.

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iPhone?

by Tim Lee on December 19, 2007 · 18 comments

My Razr’s screen just stopped working, putting me unexpectedly in the market for a new cell phone. I’m firmly on the Apple bandwagon, so the natural choice is an iPhone, But on the other hand, I’ve been less than impressed with the way Apple has treated people trying to extend the functionality of its phones, and I haven’t been paying close enough attention to the cell phone market to know if there are other phones of comparable quality that haven’t had the benefit of Apple’s Reality Distortion Field.

So: Is the iPhone worth the money? What other phones should I be considering? And if I do go with an iPhone should I wait for MacWorld to see what Uncle Steve might have up his sleeve?

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Here Comes Another Bubble

by Tim Lee on December 17, 2007 · 16 comments

This is great:

Here_Comes_Another_Bubble_-_The_Richter_Scales
Uploaded by kingofdoper

Unfortunately, TechCrunch says that the video is being pulled from video sites because a photographer who owns a copyright to a photo featured in the video isn’t happy about it being used without permission. Michael Arrington is incensed about this, and argues that the photo is fair use.

Now, Tom is right that Arrington is wrong when he says that using the photo is fair use because it’s being used in a parody. Parody is a fair use defense for using the work being parodied. You can’t just incorporate any old work into a parody and claim fair use.

However, I think the fair use argument here is stronger than Tom suggests. If we take a look at our four factors, factor 4 clearly weighs in favor of fair use (including a low-resolution copy of the photo in a viral video isn’t going to undercut the market for selling the photo), factor 3 is perhaps slightly against fair use (the whole photo is used, but it’s a low-res version, and factor 2 seems pretty neutral.

That leaves the first factor, the extent to which the use is “transformative.” I honestly have no idea how courts would come down on this factor, but certainly it’s not crazy to argue that briefly displaying a photo in a video is fair use. I mean, there are lots of law professors willing to go to the matt for the idea that incorporating short video clips into a longer video is fair use. If that’s fair use, I don’t see how displaying a photo for 3 seconds is any different.

The bottom line, I think, is that we have no idea. The cost of litigating the question would be vastly more than the cost of creating either video or the photo, not to mention more than any possible profit either might make off of them. And as these issues get quietly settled instead of litigating, de jure copyright law drifts ever further away from de facto copyright law.

And Arrington is obviously right that as a policy matter, it’s stupid that copyright law interferes with this kind of creativity. It would be an unacceptable headache to clear the rights to every single image that one wanted to include in a video like that. On the other hand, it’s hard to see how requiring that the rights be cleared does anyone any good. Someone making an amateur video like that isn’t going to pay anybody royalties. He would just use a different image if someone said no. So the public gets a lower-quality viral video, and the photographer still gets nothing.

And I think Arrington is also right that people are going to just keep doing what’s reasonable regardless of what the law says, and at some point the law is going to have to catch up with practice. This certainly isn’t the sort of thing you could get changed in Congress by asking nicely. But on the other hand, professional photographers are going to have no more luck suppressing this sort of thing than the music industry has had combatting file sharing. And at some point it will become obvious that the law doesn’t reflect reality.

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FISA Showdown in the Senate

by Tim Lee on December 16, 2007 · 2 comments

Over at Ars, Julian sums up the state of the legislative battle over domestic eavesdropping:

The current wrangling continues a debate that began this summer with the hasty passage of the Protect America Act in response to a ruling by the FISA court—a ruling which the court has declined to release, but which is purported to have required intelligence agencies to acquire warrants when wiretapping conversations between foreign parties that were routed (and recorded) through US telecom switches. Eavesdropping on purely foreign communications had previously been unrestricted—primarily because, traditionally, the physical tap on foreign-to-foreign calls had occurred overseas, outside US jurisdiction. But the Protect America Act, which is due to expire in February, went beyond merely closing this “intelligence gap” and authorized a broad program of surveillance, under minimal court oversight, that permits Americans’ conversations with foreigners to be collected, so long as the American party to the communication was not “targeted” by an investigation. The bills now under consideration seek to establish a more permanent solution: the Intelligence Committee version of the FISA Amendment would remain in effect for six years, while the Judiciary Committee version sunsets in four.

While media attention has focused largely on the question of immunity for telecom firms, the additional limitations on surveillance contained in the Judiciary Committee’s version of the bill are, arguably, at least as significant. That bill would explicitly bar “bulk” or “vacuum cleaner” surveillance of international telecom traffic that is not directed at a particular person or telephone number. It would require individualized FISA court review whenever the collection of an American’s communications became a “significant purpose” of an investigation, whether or not that person was a “target” of the investigation. And it would provide for a congressional audit of past extrajudicial surveillance by the National Security Agency.

It’s a little depressing that the debate in the Senate will be between a bill that will do a significant amount of damage to civil liberties and one that will do a great deal of damage to civil liberties. As I understand it (although I haven’t read the Senate bills closely) the House version is better than either Senate bill, although even that is far from an ideal bill. Neither house appears to have seriously considered legislation that simply permitted warrantless surveillance of foreign-to-foreign communications as they passes through the United States, which is ostensibly the reason this legislation was needed in the first place.

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Nerd Porn

by Tim Lee on December 14, 2007 · 10 comments

This is the Ron Paul netroots campaign boiled down to its essence:

I love how 2/3 of the video is an homage to the endless Enterprise fly-bys in The Motionless Picture.

Hat tip: Threat Level

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More Underwhelming Wikipedia Criticism

by Tim Lee on December 13, 2007 · 8 comments

The Register‘s latest rant against Wikipedia was sent to me by one of the people mentioned in the article. It purports to explain how “the Wikipedia elite [has decided] to take a topic as weighty as the health of US financial markets under its control without informing the public of its decision.” What follows is a long and rambling story about a dispute between Overstock.com head Patrick Byrne and Businessweek reporter Gary Weiss. Weiss, apparently, is the puppetmaster behind a grand conspiracy theory designed to keep the public in the dark about the evils of a practice called naked short selling by preventing a link to Byrne’s PowerPoint presentation on the subject from being linked to from the relevant Wikipedia paget.

Seriously. A guy named Judd Bagley soon got into an edit war over the link with another user. Bagley wanted the link included, the other user didn’t. Bagley thinks the other user is Weiss. Weiss says he’s never edited Wikipedia. The article goes on to explain more disagreements Bagley had with various Wikipedia editors. Not having followed the story, I have no idea if the ban of Bagley was appropriate. But there certainly doesn’t appear to be anything in there that comes close to damning evidence of Wikipedia’s “inner circle.”

Even the Register admits that “There’s no denying that Judd Bagley is, shall we say, overzealous when it comes to Wikipedia.” There’s clearly a lot of personal history here that I don’t know, and so I have trouble getting too worked up over the fact that Wikipedia has been attempting to block him from the site. What the article does not do is provide any evidence that there’s more going on here than a petty personality conflict. There’s a lot of rumor and innuendo, but no specific evidence of wrongdoing by “the Wikipedia elite,” whoever that is. And the Register article has an hysterical tone that makes me extremely skeptical of the scant evidence it does provide. El Reg clearly has an axe to grind, and so I’m not about to take their word for it when they say there’s a grand conspiracy going on.

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Contractual Omnipotence

by Tim Lee on December 13, 2007 · 8 comments

I’ve concluded that one of the central fault lines in the network neutrality debate is over the extent to which physical ownership of a data pipe gives an owner the practical ability to exert fine-grained control over the use of that pipe. There’s an implicit assumption on the pro-regulation side of the debate that if AT&T owns your DSL line, then it has the physical ability to, say, prohibit you from watching online videos or require you to use their email or VoIP services. Lessig and Lemley, for example, made this point repeatedly in their 2000 paper without ever explicitly justifying it. For example:

Under the design proposed by the cable broadband, AT&T and Time Warner affiliates would have the power to decide whether these particular services would be “permitted” on the cable broadband network. Cable has already exercised this power to discriminate against some services.

This is backed up by a footnote citing various restrictions mentioned in @Home’s terms of service. But as I noted previously, the fact that @Home’s terms of service formally prohibited some category of network activities did not mean that, as a practical matter, users were unable to take advantage of that service. To the contrary, it’s extremely common for users to use their network connections in ways explicitly prohibited in the terms of service, and ISPs have struggled to crack down on those who do so. The fundamental issue is that classifying traffic is a very hard problem, one that almost certainly can’t be solved in the general case. Which means that any automated filtering regime can be circumvented. And of course, having human beings monitor every user’s traffic and impose restrictions on those who violate the terms of service would be far too labor-intensive to be worth the trouble. So ISPs are forced to resort to extremely crude tactics to accomplish their filtering goals, and these tactics, in turn tend to produce both a lot of bad PR and the emergence of new, more sophisticated evasion tools. In the long run, it’s not at all clear to me that this is a battle ISPs could win, even if they had free rein to implement any policies they wanted without fear of regulatory intervention.

Continue reading →

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The Folly of Value-Added ISPs

by Tim Lee on December 12, 2007 · 6 comments

Lessig and Lemley also introduce an argument that seems to me to be fundamentally in tension with their broader end-to-end thesis:

One should not think of ISPs as providing a fixed and immutable set of services. Right now ISPs typically provide customer support, as well as an IP address that channels the customer’s data. Competition among ISPs focuses on access speed, as well as some competition for content. AOL, for example, is both an access provider and content provider. Mindspring, on the other hand, simply provides access. In the future, however, ISPs are potential vertical competitors to access providers who could provide competitive packages of content, or differently optimized caching servers, or different mixes of customer support, or advanced Internet services. This ISP competition would provide a constant pressure on access providers to optimize access.

I don’t agree with this, and indeed, I don’t think Lessig himself agrees with this any longer, although that may be a consequence of today’s less-competitive ISP marketplace. But it seems to me that the end-to-end principle does imply that we should “think of ISPs as providing a fixed and immutable set of services”: namely, moving bits from point A to point B without doing much else. While there’s nothing intrinsically wrong with an ISP offering other services besides that, the division of labor would seem to suggest that it’s generally going to work better for ISPs to offer basic service and third parties to provide caching, content, or “advanced Internet services.”

And indeed, that’s what has happened. Akamai, for example, was in its infancy when L&L were writing their paper. In the last seven years the company has thrived, despite the trend toward vertically integrated residential ISPs. By the same token, ISPs still provide their customers with email and web services, but it’s become far more common for users to bring their own email access and find third parties (including Flickr, Blogger, and YouTube) to host their web content. Even DNS, long considered core functionality of an ISP, is increasingly being offered by third parties.

Most dramatically, with AOL’s transition to being just another web portal, the business model of ISP-as-content-provider has completely collapsed. Hardly anyone now believes that it makes sense for your ISP to be a major provider of Internet content. ISPs should be competing on the basis of their ability to bring the cornucopia of content already on the web to you as efficiently as possible, not on their ability to provide an inevitably meager quantity of exclusive content on top of basic Internet access.

This probably wasn’t as obvious in 2000 as it is today. I haven’t seen Lessig or Lemley specifically address the point, but given Lessig’s enthusiastic embrace of network neutrality regulation (which is based on the implicit premise that ISPs shouldn’t be more than a “dumb pipe”), I would bet he’d concede that value-added ISPs aren’t as promising a concept as they appeared a decade ago.

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A Look Back at Lessig and Lemley

by Tim Lee on December 12, 2007 · 0 comments

Way back in 2000, Larry Lessig and Mark Lemley wrote The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era. It’s interesting because it underscores how rapidly the broadband debate has evolved in this decade. At the time Lemley and Lessig were writing, the big issue was whether cable companies would be required to unbundle their cable Internet service the same way phone companies were required to unbundle their DSL service. Since then, of course, the FCC has no only declined to unbundle cable lines, but has abandoned unbundling of DSL lines as well.

Lessig and Lemley were on the other side of this issue, warning that allowing cable companies to offer only integrated cable Internet service threatened to undermine the end-to-end principle of the Internet:

The consequence of this bundling will be that there will be no effective competition among ISPs serving residential broadband cable. The range of services available to broadband cable users will be determined by the “captive” ISPs owned by each local cable company. These captive ISPs will control the kind of use that customers might make of their broadband access. They will determine whether, for example, full length streaming video is permitted (it is presently not); they will determine whether customers might resell broadband services (as they presently may not); it will determine whether broadband customers might become providers of web content (as they presently may

The third has clearly happened, although it’s not clear to me that that’s a great loss, since third-party web hosting is an extremely competitive market. There’s no obvious reason for people to run servers out of their homes and some good reasons for them not to. The second has happened in theory, but not really in practice. I have a wireless access point connected to my cable modem despite the fact that my terms of service most likely requires that I only connect a single computer. Charter hasn’t given me a hard time about it. So what your ISP requires in theory and what they enforce in practice can be very different questions.

Continue reading →

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Nerd Sniping

by Tim Lee on December 12, 2007 · 4 comments

Awesome:

I want to see someone work the problem. It looks like it should have an elegant solution, but I’m not seeing it.

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The Music Industry Quietly Legalizes File-sharing

by Tim Lee on December 11, 2007 · 4 comments

Over at Techdirt, I note a development that I don’t think has gotten nearly as much attention as it should:

Imeem, a social networking site that was in the recording industry's crosshairs earlier this year for allowing file-sharing on its network, has pulled off an impressive feat. This summer it settled its lawsuit with Warner Music by promising to give Warner a cut of advertising revenues from the site. Now the Wall Street Journal is reporting that it’s signed similar deals with all four major labels, meaning that Imeem is now the first website whose users have the music industry's blessing to share music for free. What's especially striking about this is that for the last decade, the fundamental principle of the labels' business strategy is that sharing music without paying for it is stealing. They drove Napster, AudioGalaxy, Grokster, Kazaa, and other peer-to-peer file-sharing services out of business on that basis. As we pointed out way back in 2000, all this accomplished was to drive file-sharing underground where the recording industry couldn't get a cut of the profits. Had they approached Napster in 2000 the way they approached Imeem this year, they could have been collecting ad revenue from every file-sharing transaction over the last seven years. Instead, they wasted a lot of money on lawsuits, angered a lot of their customers, and ultimately still had to concede that music sharing might be OK as long as they get a cut. The only significant difference between Napster and Imeem is that Imeem only allows you to play music on its website, whereas Napster allowed you to download songs to your hard drive. But this isn't as big of a difference as it might appear at first glance. The Imeem website doesn't provide a "download" button, but there's no DRM involved, and it's quite easy to download music files from Imeem using third-party tools. And because Imeem's site doesn't use DRM, Imeem downloading tools are probably legal under the DMCA. So what we have here is the de facto legalization of Napster-like sites, as long as the record labels get a cut of the advertising revenue. It's an exciting development, albeit one that should have happened seven years ago.

This was largely reported as a run-of-the-mill business story by the tech press. But I think it’s much bigger than that. Between this and the swift abandonment of music DRM, I think 2007 will be seen as the real turning point for online music.