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 certaincompanies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.
Tom Lee has a great post on this New York Times article, which looks at the pressing problem of culinary piracy. Tom points out that the law is very clear—you can’t prevent other people from copying your recipes—and that’s a good thing:
All of this ignores the public domain innovations that Ms. Charles benefits from, royalty-free: the cocktails her bartenders serve, the system of reservation-making she presumably employs, and, most amazingly, the Caesar Salad recipe that she says her mother got from another restaurant, but which she’s now suing her sous chef for using. Diffuse borrowing seems to be okay; borrowing too much from one place isn’t, I guess. But where do you draw the line?
The story mentions that nondisclosure agreements are coming to more and more kitchens, but fails to point out why this is: as screwed-up as our IP system is, it actually dealt with these questions before the food industry was sufficiently powerful to corrupt the process. That’s why lawyers are now trying to shove all of this stuff into contract law, where you can get away with much more. In other words: it’s because the sorts of claims Ms. Charles is making are untenable under IP law.
There’s no question that the sous chef is being tacky by copying Charles’ restaurant, but it would be very silly to open a Pandora’s box by punishing him for copying paint colors. IP laws are there to encourage people to make new things; the market’s there to get them to make those things better. These distinctions can get blurry in the world of novel cuisine. But restaurants are fundamentally in the business of selling food, not seeking rent on ideas about food. This story is asinine, and Pete Wells would have done better to highlight how stupid everyone involved is being instead of just making the guy getting sued sound like a jerk.
Update: Oops, forgot to actually include the link to Tom’s entry. My bad!
Based on my hazy recollection from the one computer architecture class I took, this is very close to how addition in real computers works, only the rockers are replaced by a sequence of NAND gates.
Hat tip to Cord Blomquist, who doesn’t appear to believe in permalinks.
But Warner/Chappel Music Inc. of Los Angeles said the video infringes on its copyright to “We Are the World.” The song raised money for famine relief the video featured some of U.S. music’s biggest stars, including Ray Charles, Stevie Wonder and Bruce Springsteen.
“According to our records, no request has been made to use the Composition, no authorization has been granted nor has any license been issued for the use of the Composition on the website,” Kelly Isenberg, the company’s director of legal and business affairs wrote in a May 8 letter to the church.
Inasmuch as any use of “We Are the World” constitutes a parody and other fair use; given the parodic purpose and character of “God Hates the World;” its transformative elements; the complete lack of any commercial use; and the complete lack of any market substitution or confusion; your demands are respectfully denied. See Campbell v. Acuff-Rose Music, Inc. “God Hates the World” is clearly a parody of “We Are the World,” targeting that work with criticism and commentary, including commentary with critical bearing on the substance, style, nature, approach, marketing-of-an-idea-purpose, and various other aspects of the original work, in many particulars. The nub of the parody is to mimic the worldwide unity the song purports to reflect and encourage, and criticize that unity as God-defying and the heart and soul of why God hates the world, in our view of the matter.
The guy has a point; fair use permits bigoted parodies as much as any other kind.
Slashdot has a story about how the ESRB has given Manhunt 2 an AO rating, which means that they won’t be allowed to release it for the major console platforms.
A Slashdot reader asks why they couldn’t just release the game without Nintendo, Sony, and Microsofts’ permission. After all, the Accolade decision held that reverse-engineering a video game console to produce compatible games was fair use under copyright law. So in the 1990s, competitors had the option of producing games for a console without the console manufacturer’s permission.
But this comment puts his finger on what has changed:
Legally they can’t stop you. You’re welcome to release your game. The trick is, it will only run on modded hardware, same as any other homebrew game. They’re not preventing you from *releasing* it, it just won’t run on most hardware without the magical cryptographic signature that licensed games get.
So, they can’t sue you to stop you from releasing it. But they don’t need to, because it won’t work anyway. And if you manage to break the cryptographic signature and release it in a manner that actually works, well, that’s where the DMCA comes into play. Nintendo/Sony/et al. have all their bases covered.
It’s a basic tenet of libertarian theory that limitations on speech by private party isn’t censorship; the Wall Street Journal isn’t censoring me by refusing to run my letter to the editor. But I think it becomes less clear-cut if the law gives a company the legal power to prohibit consumers from playing the games of their choice on a console even after they purchased it. That’s obviously not at problematic as having a government agency make the decision for all consoles simultaneously. But if we’re concerned with liberty, I think we should be trying to maximize consumers freedom to do as they please with their lawfully acquired property in the privacy of their own homes. Reverse-engineering can be an important safety valve for free speech if the companies that control our media devices impose too many unreasonable restrictions. Nintendo should never be forced to sell, support, or endorse any video game. But if consumers want to go to the trouble of acquiring a game without Nintendo’s help or approval, I don’t see what possible rationale there is for the law to stand in his way.
Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Adam Thierer of the Progress and Freedom Foundation, Tim Lee of the Cato Institute, Jim Harper of the Cato Institute, Hance Haney of the Discovery Institute, and Cord Blomquist of the Competitive Enterprise Institute. Topics include,
Adam Thierer releases a new book on parental controls,
Congress debates an immigration proposal that would require a beefed up national ID system, and
Google beefs up its presence in Washington, DC.
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
Hugh D’Andrade points out that Sony is rumored to be on the verge of ditching its proprietary, DRM-encumbered Connect service. As he points out, it’s a cautionary tale for consumers considering the purchase of DRM-infected content:
Sony Connect customers could strip out DRM from their music, or tech creators could reverse engineer the DRM to create compatible devices. But sadly, these solutions are illegal under the Digital Millenium Copyright Act (DMCA).
The truth is, these dangers exist whenever you buy DRMed music from any vendor. You’re locked into the limited array of players that the DRM is compatible with, and, if that DRM some day is entirely unsupported, you’re out of luck.
The continuing appeal of vinyl records shows how wrong-headed this approach is.
LPs continue to play just fine, decades after the makers of the first record players have gone out of business, thanks to the kind of interoperability that DRM lacks. That’s not just good value for customers who bought LPs, it’s also good value for a society that values archives and the ability to access its cultural history long after the companies that distributed it have died off.
This isn’t the first time this has happened. Users who bought music infected with Microsoft’s PlaysForSure DRM faced a similar dilemma when Microsoft announced its introduction of the incompatible Zune format. Buying DRM-encumbered content always means that you’re dependent on the company that created the DRM scheme.
You’ll occasionally hear the argument that critics of the DMCA are exaggerating its anticompetitive effects. Sometimes, DMCA supporters will demand examples of technologies that have been stifled. This is, of course, an unfair question because it’s impossible to identify the technologies that weren’t developed due to a bad legal regime.
But today Ars has a textbook example of the way the DMCA is being used not to control piracy, but to strangle a new technology that Hollywood doesn’t like:
The proposed amendment was revealed by Kaleidescape CEO Michael Malcolm, whose company triumphed in a legal battle against the DVD CCA earlier this year. Kaleidescape manufactures pricey home media servers (starting at $10,000) that rip and store all of a customer’s media for DRMed playback throughout the home. The DVD CCA said that Kaleidescape was opening the door to piracy and interpreted the license to say that a DVD must be physically present in a drive in order for a movie to be played.
My former boss David Boaz has a great post lamenting Google’s decision to dramatically expand its political muscle:
Google’s brilliant staff are now spending some of their intellect thinking up ways to sic the government on Microsoft, which is once again forced to give consumers a less useful product in order to stave off further regulation. The Post’s previous story on Google’s complaint called it ”allegations by Google that Microsoft’s new operating system unfairly disadvantages competitors.”
Bingo! That’s what antitrust law is really about–not protecting consumers, or protecting competition, but protecting competitors. Competitors should go produce a better product in the marketplace, but antitrust law sometimes gives them an easier option–asking the government to hobble their more successful competitor.
Recall the famous decision of Judge Learned Hand in the 1945 Alcoa antitrust decision. Alcoa, he wrote, “insists that it never excluded competitors; but we can think of no more effective exclusion than progressively to embrace each new opportunity as it opened, and to face every newcomer with new capacity already geared into a great organization, having the advantage of experience, trade connection and the elite of personnel.” In other words, Alcoa’s very skill at meeting consumers’ needs was the rope with which it was hanged.
I look forward to more competition between Microsoft and Google–and the next innovative company–to bring more useful products to market. But I’m saddened to realize that the most important factor in America’s economic future — in raising everyone’s standard of living — is not land, or money, or computers; it’s human talent. And some part of the human talent at another of America’s most dynamic companies is now being diverted from productive activity to protecting the company from political predation and even to engaging in a little predation of its own. The parasite economy has sucked in another productive enterprise, and we’ll all be poorer for it.
I regard Google as the good guys on at least some of the issues their lobbyists are likely to focus on. But the broader point is spot on: these lobbying battles are a massive waste of talent. The more power Washington has over the technology industry, the more money companies will spend ensuring that that power is used to help, rather than hurt them. This is one of the reasons it’s a good idea to think twice before enacting legislation that will expand government power.
Ars reports that Illinois is the latest state to jump on the franchise reform bandwagon. I haven’t looked at the specific bill, but if it’s anything like Missouri’s legislation I think it’ll be good for consumers.
Perhaps the best thing about it is that each new telecom bill that passes reduces the risk of new telecom legislation at the federal level. Franchise reform was near the top of the telcos’ wish list in the last Congress, and without that spur, they’re likely to lobby against any changes in telecom rules. Eighteen months ago I argued that we should all be rooting for the telecom bill to go down in flames, and I got my wish in the last session. I’m rooting for the same outcome this session.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.