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.


Japanese Copyright Law

by on September 5, 2007 · 6 comments

Via Marc Andreessen comes the latest silly example of a foreign government trying to use industrial policy to help its companies catch up to the Silicon Valley. I’ll give you three guesses on how well this plan will work.

Of course, making fun of foreign governments and their search engine projects is old hat here on TLF. More interesting, from my perspective, is this tidbit:

Some blame Japan’s copyright laws for holding back the development of web services. Services such as Google hold copies of other companies’ web pages on their servers. Because Japanese law forbids the duplication of copyrighted works without the rights holders’ permission, Yahoo Japan, Google Japan and other search engines offered in Japan operate from US-based servers.

One wonders how the Internet might have evolved had a similar rule been imposed on the United States in the mid-1990s.

When Schools Matter

by on September 5, 2007 · 0 comments

The other thing to say about Paul Graham’s essay is that success at founding startups seems like almost the worst possible metric for judging the value of an Ivy League education. At least the way Graham tells it, to succeed at a startup, you have to be reasonably smart, extremely dedicated, and willing to break a few rules in order to find a new way of doing things. Intelligence is useful for getting into a good college as well, but the other major criteria are almost exactly the opposite. To get into an Ivy League school, you need to be good at following rules, sucking up to grown-ups, and performing activities that look good on your resume whether or not you’re actually interested in them. In some cases, getting into an elite school is helped by having access to good tutors, career counselors, test prep coaching, and in some cases parents willing to make 5-figure donations to their alma maters. The sort of intense, deep, and sustained interest in a single subject that is essential to success at a startup is hard to convey on a college application form or a resume.

Now, the thing is, the skills that are required to get into an elite school actually are useful in a lot of high-status careers. For example, becoming a good doctor involves achieving proficiency at a lot of different aspects of medical practice. You don’t really care if your doctor is capable of devoting months of intense effort to a hard technical problem, as long as he can correctly diagnose your condition and competently administer the remedy.

So I think the question of whether someone’s Ivy League background matters is largely a function of what qualities you’re looking for. An Ivy League degree is a good signal for the kinds of qualities that allow people to get admitted to Ivy League schools. If you’re in a business in which those qualities aren’t important, as Graham is, then it obviously doesn’t make sense to pay attention to where someone went to school.

As someone in a status-conscious profession who didn’t go to an Ivy League school, I would like to believe that Paul Granam is right about this. But although I certainly think it’s true that the value of an Ivy League education is often overstated, I don’t think it’s true that it doesn’t matter where you went to college.

To get the obvious point out of the way first, I believe him that an Ivy League education won’t make you any smarter. If you were smart when they accepted you, you’ll be just as smart when you leave. And since to a first approximation career success is a function of intelligence and determination, neither of which an Ivy League college can impart, I’m not surprised that studies have found little correlation between Ivy League attendance and lifetime earnings.

However, I think an Ivy League institution offers two important advantages, both relating to who your classmates are. First, the intelligence of your classmates determines the pace and intellectual of your classes. Professors pace their classes to be understandable to the average student. If you’re significantly smarter than the average student in a class, you’re not going to learn as much as you could be learning, and if you’re lazy and undisciplined, like I was at 19, you might get bored and stop showing up for class entirely.

Second, in most professions, who you know does matter. It matters more in some professions than others, of course, but there are hardly any professions in which it doesn’t matter at all. Indeed, Graham himself has noted that one of the best ways to meet possible startup-founder-partners is to meet them in college. And although there are smart people at every college, on the margin there will certainly be more smart people at Ivy League schools than non-Ivies.

It matters even more in public policy (this might be largely a reflection of the fact that public policy isn’t an especially meritocratic field, but I don’t think that’s the entire explanation). Being a good journalist, policy analyst, lawyer, lobbyist, etc is largely a function of knowing a lot of people who are doing things related to what you’re doing, preferably in prominent positions. If I’ve got a question on education policy, for example, it’s helpful to have in my rolodex a friend who works on education policy. People who go to Ivy League schools are likely to have a larger number of people in positions of power and influence than people who go to non-Ivies.

I would note that at least from an outsider’s perspective, at least, academia seems to be a bit of a special case in the sense that who your professors were actually does matter. Going to a good school for a PhD allows you to develop relationships with people whose recommendations will carry more weight on the academic job market. This seems to be the same mechanism that makes going to a good law school important to getting good clerkships, which in turn is a major qualification for being a law professor or judge. If you aspire to a profession in which a limited number of slots are doled out using subjective by existing elites, where you went to school can matter quite a lot.

First Sale and the GPL

by on September 5, 2007 · 6 comments

Mark Blafkin objects to my post on the First Sale Doctrine:

Tim is also glossing over the most important point. Free software depends on “license agreements” as much if not more than Ballmer and Co. By my reading, if the courts were to fully subscribe to the ideas of Fred VL and Tim, the entire Copy Left movement would be crippled. They would not be able to impose any of the limitations on use/redistribution that are contained in the various versions of the GPL. The proprietary software industry can probably survive without shrinkwrap licensing as Tim suggests, but I don’t see how the Open Source/Free Software communities can survive under the legal framework that Tim is espousing.

Three points come to mind here. First, the most obvious point is that (as Mark would doubtless agree) we shouldn’t necessarily be interpreting copyright law in a way that privileges free software or any other particular business model. If the overall best interpretation of copyright law means the GPL, as written, can’t be enforced, that’s a problem for Eben Moglen, not for the copyright system. I like free software but I don’t like it that much.

Secondly, a point I gleaned from Fred in last week’s podcast: the first sale doctrine is focused on the distribution right. The GPL, in contrast, primarily implicates the reproduction and derivative work rights. There is not, as far as I know, a First Sale Doctrine with respect to those other rights. That is, if I sell someone the right to reproduce my copyrighted work, there’s no copyright provision that says that person can turn around and sell the right to a third party.

Finally, it’s worth noting that the courts have never been the primary enforcement mechanism for the GPL, which is a social contract as much as it is a legal one. The GPL lays out the preconditions for being a member in good standing of the free software community. The primary penalty for violating the license isn’t that you get sued; it’s that you get ostracized by free software developers. As Novell has discovered, you can be in technical compliance with the letter of the GPL and still get ostracized for violating its spirit. So while it’s obviously better for the free software community if they have the force of law backing them up, the GPL might continue to be useful even if it becomes difficult to enforce in a court of law.

EFF predicts that the Holt bill will finally be coming to the floor for a vote later this week. As Larry Nordin and I wrote last month (and as I wrote in The American in May) the bill would be an important step in the direction of a more secure and reliable voting process. If you didn’t catch it, be sure to check out the discussion we had on the podcast with Ed Felten on e-voting reform and the Holt bill.

Still, I agree with EFF’s Matt Zimmerman that the Holt bill leaves a lot to be desired:

Are DREs, even those utilizing VVPATs, fraught with problems? Of course. Should more rigorous audits be mandated? Absolutely. But a heartfelt desire to ban DREs or improve audits is no reason to oppose this bill, especially since states are not prohibited from making either of these reforms — or nearly any other voting system-related reform — on their own.

Our support for HR 811 is tempered by profound disappointment that one of the bill’s pillars has been watered down to the point of ineffectiveness due to pressure from the proprietary software industry. The source code disclosure provisions, requiring that voting system source code be disclosed at the very least to litigants and other “qualified persons” who can test the integrity of the voting system under a non-disclosure agreement, have since the bill’s introduction been replaced by a requirement that “voting system software” — a definition that does not explicitly include source code — be disclosed. While “correcting” language was included in the Committee Report as a result of prompt feedback from computer security experts after the bill’s current language was released, that Report will likely not be sufficient to ensure source code access. Having litigated cases in which prompt access to voting system source code is critical, EFF’s strong advocacy for this bill has been based in large part on the source code disclosure requirement. We call on Rep. Zoe Lofgren and the other members of the Elections Subcommittee to promptly fix this provision — using the explicit language included in the Committee Report — before the bill makes it to the floor of the House.

Probably the biggest problem with the latest versions of the Holt bill are the provisions allowing the use of cheap thermal printers in the 2008 and 2010 elections. In my opinion, using these cheap printers might be worse than no paper trail at all, because they’re prone to jamming and because if the paper is left on the reels it can compromise vote anonymity. I would rather have legislation that exempted states entirely for 2008 and imposed more rigorous standards for 2010 than to try to impose half-baked reforms for 2008 that end up making the concept of paper trails look bad.

Surrealist Security Theater

by on September 3, 2007 · 0 comments

I wonder if the TSA is starting to take the phrase “security theater” too literally. Xeni Jardin at Boing Boing reports on a downright surreal incident at the Los Angeles airport last week:

I walked from the arrival gate towards baggage claim, and when I was about halfway there, all of a sudden about a dozen or more TSA personnel and private security staff appeared, shouting STOP WHERE YOU ARE. FREEZE. DO NOT MOVE. Not just at me, but all of the travelers who happened to be wandering through the hallway at that moment.

Some of the TSA guards then backed up against walls in the hallway, and sort of barked at anyone who tried to move a few feet away from their “spot,” like towards chairs to sit down or whatever.

One TSA guard jogged ahead, back towards the arrival gates (United, this was Terminal 7). At first I assumed maybe it was some weird security drill? A few of us asked what was going on, and got terse answers, like, “Security review.” WTF? 5 minutes passed. 10, 15, 20. The two teen Japanese tourists about ten feet behind me looked utterly dazed — welcome to America, guys. I was really jetlagged and cranky, wanted to move a few feet and sit down, but the TSA lady nearest me kind of snapped at me to stop and stay frozen where I was when the order went out.

After 30 minutes, the TSA people said, okay, you may leave now. And everyone unfroze, and went and got their bags. No explanation.

That’s just bizarre. But it sounds very theatrical. I wonder if any of the travelers in that hallway walked away thinking “man, those TSA agents sure are working overtime to keep me safe from terrorists!”

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I’m going to have to respectfully disagree with Braden Cox’s take on post-sale restrictions of the first sale doctrine. Braden did a good job of explaining why limiting the first sale doctrine would be good for software companies. But he did not, as far as I can see, provide any explanation for how limiting the first sale doctrine would benefit society as a whole, which is what copyright is supposed to accomplish.

I have no doubt, for example, that software companies desire to enforce “legitimate price and market segmentation” schemes. But the fact that software companies would like to enforce such schemes is in no way an argument for interpreting copyright in such a way as to make it easier to do so.

Indeed, it’s important to remember where the First Sale Doctrine came from. The Bobbs-Merril case was about precisely the sort of thing Braden is discussing in his post:a publisher using copyright law as an alternative method of enforcing its pricing policies. The Supreme Court, rightly in my view, held that that’s not what copyright was for. And the next year Congress agreed, codifying the First Sale Doctrine into the 1909 Copyright Act.

One can imagine the an advocate for the publishing industry in 1909 making precisely the same argument Braden makes here: that “If we rely more on contract instead of copyright rules, would there be a contract to sign every time a customer purchased a book?” But that begs the question. Obviously, this would be a big pain in the butt, both for the publishing industry and for consumers. And that is precisely why most publishers don’t require you to sign a contract before you sign a book. It is only when they have the option to use the copyright law as a means of shifting the costs of enforcing their contracts onto other people that publishers are interested in promulgating such contracts. When publishers are required to bear the full costs of enforcing those contracts themselves, as they were in Bobbs-Merrill, they discover that they can get along just fine without post-sale restrictions on the use of their products.

I think the same is true of the software industry. If the courts refused, as I think they should, to characterize retail sales of software as “licenses” based solely on the existence of an EULA inside the box, I do not believe that software firms would respond by making you sign a paper contract before you could leave the store with your Best Buy purchase. Rather, they would simply adjust their business models to accommodate the new legal environment. To be sure, this might have some negative effects—academic discounts might become less frequent, for example—but I think it would have some positive effects as well. Most obviously, fewer legal resources would be wasted in litigation over precisely which terms in a EULA are and aren’t enforceable against whom. It might also end the farcical situation in which we all “agree” to dozens of “license agreements” we never read, and which are almost never enforced in court.

But the fundamental issue here is that the convenience of the software industry is not a sufficient argument for any given change to copyright law. The copyright system is supposed to promote “the progress of science and the useful arts,” not to make Steve Ballmer’s life easier. The two aren’t always in conflict, of course, but they’re also rarely in perfect alignment.


Lately I’ve been writing about the Electronic Frontier Foundation’s new First Sale Doctrine case, which will consider whether it’s copyright infringement to resell those “promo CDs” that record labels send to DJs, journalists, and others in the hopes of drumming up publicity. Universal Music says that such sales amount to copyright infringement, but EFF’s Fred Von Lohmann charges that UMG’s lawsuit runs afoul of the First Sale Doctrine.

Fred joins us for this week’s podcast along with Prof. Randy Picker of the University of Chicago to discuss the legal and policy implications of the case. In a wide-ranging discussion, they covered the differences between contract and copyright law, the implications for the software industry, and whether the GPL runs afoul of the First Sale Doctrine. TLFer Braden Cox also weighed in, and Adam Thierer hosted.

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I agree with Jack Shafer about this:

Upon waking, I’m delighted to desack the morning papers, discard the never-read sections—classified, food, home, travel, real estate, health—and arrange the buffet before me. But even if all I’ve pre-read from the Web are the Page One headlines, the print stories don’t really pop out at me unless they’re packaged with a terrific photo I haven’t seen before. Horrible as it may sound, on many days the newsprint front page tastes of already chewed gum.

I’m not the average reader, but anecdotes convince me that the average reader is becoming more like me every day—reading tomorrow’s news today. This time-shift is as historically significant as the great migration of newspaper readers from afternoon to morning dailies, or the adoption of AM news radio by sequestered commuters. Where the newspaper was once considered the day’s complete news, it’s now just all-the-news-that-fits. The genuine news enthusiast trolls the AP wire, foreign news sites, and the usual aggregators for the biggest picture.

I think, however, that Shafer gives newspapers too much credit later in the piece:

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Responding to Skube

by on August 30, 2007 · 2 comments

An excellent counterpoint to that godawful piece on the alleged deficiencies of the blogosphere. NYU professor Jay Rosen provides a long list of examples in which the blogosphere did high-quality reporting on subjects ahead of the mainstream media.

Hat tip: Radley, who correctly notes that he’s done some amazing investigative reporting of his own.