A reader writes in to point out Ken Fisher’s excellent take on the Verizon/NARAL controversy:
When first reported by the New York Times last night, the issue was tied to “net neutrality,” but this is really a red herring. Laws prevent Verizon from censoring voice calls or even individual emails, but there are no prohibitions on censoring SMS messages sent over that network. Verizon Wireless does not censor Internet content or services, even though it currently reserves the right to do so for short code messaging services. However, public outcry changed Verizon Wireless’ tune in less than 24 hours.
Verizon Wireless is quick to point out that their prohibition had been based on the topic of abortion itself, not on any particular side within that debate. That is, the company does not want to look as though it was taking sides in the abortion debate itself.
Nancy Keenan, president of NARAL Pro-Choice America, said, “Regardless of people’s political views, Verizon customers should decide what action to take on their phones. Why does Verizon get to make that choice for them?”
Given that Verizon Wireless was the only carrier to refuse NARAL, it’s not surprising that they have changed course so quickly. It’s proof positive that bad policies can and will be addressed if the public’s sense of fairness can be marshalled.
It’s worth bearing in mind that given the finite number of short codes available, Verizon has to exercise some level of discretion in deciding who gets to have one. And at a very minimum, I want them restricting access enough to ensure that I don’t get spam sent to my phone. In this case, the market worked: Verizon’s decision sparked a consumer outcry, which in turn caused Verizon to re-consider its decision within barely 24 hours of its coming to public attention. This is hardly a good example of the need for greater regulation.
Last there was more big news out of Europe regarding Microsoft’s ongoing antitrust saga in the European Union. The European Court of First Instance made an important holding regarding what Microsoft would be able to bundle in its Windows operating system, as well as some rulings about the disclosure of interoperability information for its systems. This week, we’ll be discussing the implications of the ruling for the software industry and consumers.
Our guest this week is Jonathan Zuck, president of the Association for Competitive Technology. We’re also joined by TLF regulars Hance Haney, Cord Blomquist, Tim Lee, and Adam Thierer.
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Here’s an essay that (based on the abstract, at least, I haven’t had a chance to read the whole paper) perfectly crystalizes the anti-libertarian premises at the heart of the copyright maximalist position:
The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologist-defined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law. In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright’s anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making. In essence, the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.
The (mis)use of the term “rule of law” here is telling. The American founders understood the phrase to refer to the idea that government officials may use the coercive apparatus of the state only in accordance with general laws that apply equally to all citizens. The founders would be appalled at the way many people seem to use it today, to express the idea that citizens have a duty to obey Congressional edicts, no matter how vague or arbitrary they might be.
Nor would any libertarian be comfortable with the notion that a “re-allocation” of peoples’ rights was justified merely because such an allocation “emanates from duly constituted public authorities.” Libertarians believe that rights exist prior to and independently of government edict. One of my examples of this is in Hernando de Soto’s The Mystery of Capital which includes a lengthy discussion of the origins of American property law. The American Congress tried repeatedly to impose top-down property rights systems on frontier territories. These efforts were resisted by pioneer squatters, who were not impressed by the fact that their edicts had “emanated from duly constituted public authorities.” Instead, the squatters came up with their own indigenous schemes for establishing their own property rights and recognizing their neighbors’. Eventually, after repeated efforts by American troops to drive squatters off land that (according to the official property system) belonged to someone else, Congress was forced to give up its efforts to “re-allocate” property rights, and instead recognized and formalized peoples’ existing property claims.
In a sense, it’s absolutely true that “the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices.” But technologists are not “fighting to take control of rule-making” in the sense of imposing a different set of copyright restrictions on people. Rather, they’re fighting for the right to be left alone, free of meddling from a distant and incompetent federal government. Most geek activists simply want meddlesome laws like the DMCA repealed, leaving people free to do as they please with their lawfully acquired property.
Rarely has the case for copyright maximalism been put in such starkly anti-libertarian terms.
A new survey shows that “OPEN SAUCE developers are staying away from the latest GPLv3 licence in droves.” Well, sort of. The survey says that six percent of developers are using the license now, which actually seems like a reasonable number given that the license was released less than three months ago. More ominously for the FSF, almost half of the developers surveyed do not plan to ever adopt the license.
However, it seems to me like the press release omits some important information. For one thing, apparently “The Apache Foundation was identified as the organization having the best Open Source offerings.” The Apache Foundation, remember, uses a BSD-style license that allows code to be incorporated into proprietary software. In other words, it isn’t a copyleft license.
That suggests that a significant number of the open source developers being interviewed are not users of copyleft-style licenses in the first place. That they’re not planning to adopt GPLv3 is no more remarkable than if they’d conducted a survey that included a lot of Microsoft employees and discovered low enthusiasm for the GPL.
The important question is how many developers currently developing GPLv2 software are planning to switch to v3. The organization doesn’t appear to have released any detail about how their developer were chosen, so there’s really no way to tell the answer to that question from the information they’ve released.
Slashdot reports that the “multiply” feature on Excel 2007 doesn’t work. (Seriously) A Slashdot commenter describes Microsoft’s response:
Microsoft already has a patch in the works to help users overcome this issue. Whenever the user types a ‘*’ in a formula, an animated sprite of Charles Babbage’s head will pop up. It will show this bubble caption:
“It looks like you’re trying to multiply two numbers. I can help show you how to use the Method of Finite Differences to find a good approximation of your answer using only addition and subtraction. Would you like me to bring up a wizard so that we can get started on finding an appropriate power series?”
This week’s podcast focuses on two copyright issues. First, Congress has been considering legislation that would extend copyright-like protections to the fashion industry. Second, in the decision of Golan v. Gonzales earlier this month, the Tenth Circuit held that Congress cannot re-impose copyright restrictions on public domain materials without invoking heightened First Amendment scrutiny.
Our first guest is a man who’s been in the thick of both controversies. Chris Sprigman is professor of law at the University of Virginia. He was one of the attorneys behind the Golan case, and he wrote a widely-read paper called The Piracy Paradox” arguing against extending copyright law to the fashion industry. Our other guest, Julian Sanchez, wrote an article for the American on the Congressional effort to impose copyright restrictions on the fashion industry.
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Yglesias is right about this:
Near the end of The New York Times’s article on new NBC TV downloads, Jeff Gaspin, NBC TV’s president, says “Our research shows that 83 per cent of the viewers would still rather watch on a TV than a PC.”
This doesn’t necessarily seem relevant to me. I would want to watch shows on as high-quality a display as possible but whether that display is a “monitor” connected to a computer or a “television” connected to a cable box doesn’t matter at all. I don’t, in practice, connect my TV to my computer but if you made it possible to download files that were worth watching on a large high-definition screen, then I’d do it in a minute.
Another aspect of consumers’ preference for TV-watching is a matter of convenience. That is, they want a compact, simple, and user friendly box that will fit on their TV stand and be operated with a remote. Right now, TVs fit that profile and computers don’t.
But that’s surely going to change in the next decade. Already, set-top boxes like the Apple TV provide a mostly TV-like experience. Sometime in the not-too-distant future, you’ll be able to buy a user-friendly $200 set-top box with an ethernet port on the back that allows you to download and play video files. What’s lacking is a robust, user-friendly distribution network for large quantities of free video content. This is a bit of a chicken-and-egg problem because nobody is going to buy a set-top box unless there’s content available for it, but few people are going to produce content for a given network unless there’s a large enough installed base to make it worthwhile.
But sooner or later, someone’s going to figure out a way to solve the dillemma. It might take the form of a peer-to-peer network like Joost or it might be a next-generation version of Netflix, where you pay $20/month for access to an unlimited amount of Internet-based streaming video. Technologically speaking, the set-top box will be a “computer,” but consumers will simply perceive it as a cable box with a virtually unlimited number of “channels.”
Incidentally, it’s rather bizarre that TV networks are so determined to charge consumers for copies of their TV shows. TV networks have been giving TV shows away for free for half a century. They’re the world’s experts at monetizing eyeballs. And if anything, selling ads on the Internet should be easier because they can precisely measure the size and demographics of their audience. So why do they continue giving their TV shows for free over the air (and even spending millions of dollars advertising those free shows) while fretting about the possibility that someone might get the exact same TV shows for free via the Internet? They should be creating MPEG files featuring their TV shows with embedded ads and giving them away for free on peer-to-peer networks.
Ars reports on a new ITIF report critiquing the push for voter-verified paper trails in electronic voting. It’s a good summary over all, but I found a couple of things wanting about this part of it:
Castro makes his arguments against paper trails largely by ignoring the different role that paper has played (and may again play) during balloting. Currently, paper-only balloting is being suggested as a stop-gap solution for situations where the alternative is the use of electronic systems with recognized flaws; very few propose paper as a long-term solution. But a substantial fraction of the report is dedicated to enumerating the flaws of all-paper systems. Meanwhile, it attempts to use those same flaws to paint any attempts at using paper in any context—including cases where paper would create a supplemental record in electronic voting—as being equally flawed.
The report’s approach to people who oppose electronic voting systems is equally clumsy. A lot of the opposition to electronic voting is not focused on the concept itself, but rather some of the clearly flawed implementations of these systems. Instead of recognizing this distinction, Castro simply paints opponents as paranoid luddites: “Many opponents of electronic voting machines are motivated by a distrust of technology, anger at election results, and conspiracy theories about voting companies.” That sort of language pervades the report; concerns regarding the independence and robustness of voting machine validation apparently doesn’t exist. In Castro’s mind, the only opposition results from ill-informed paranoia: “Because some people do not understand that voting machines must undergo independent testing, they fear that a voting machine may steal their vote.”
I don’t know of any rigorous polling on the subject, but I think it’s an overstatement to say that “very few propose paper as a long-term solution.” Personally, I think that it’s at the very least an open question whether e-voting will ever be secure enough to be trusted, even with a paper trail. Certainly a paper trail is a big step in the right direction, and I certainly think there are strong arguments for making computerize ballot-marking machines available to the disabled. But given the large dangers and small benefits of e-voting, I think it’s a mistake to assume that paper is just a stopgap solution.
Relatedly, I think it’s a little bit misleading to say that e-voting critics are against “clearly flawed implementations” rather than e-voting itself. E-voting critics—including those like Ed Felten and Avi Rubin who support e-voting with a paper trail—emphasize that paperless e-voting fails for fundamental, systematic reasons. They advocate paper trails because they believe we can’t depend on the correctness of software systems that will always be vulnerable to hacking. I guess in some sense the lack of a paper trail is a “flawed implementation,” but I think it makes more sense to say that paperless e-voting is inherently insecure.
With that said, Ars is certainly right that it’s silly to paint e-voting critics as paranoid cranks. Ed Felten has a good post that ends thus:
The real worst-case scenario isn’t divergent paper and electronic records — with their attendant litigation and political discord. The real worst case is an attack or error that never even comes to the attention of election officials or the public, because there isn’t an independent way of catching problems.
That’s exactly right.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.